Wills & Probate

RULES

Who can make a Will?

Basically anyone can make a Will who has attained the age of 18 or is or has been married and is of sound disposing mind. The capacity of persons to make a Will is more particularly set out in Section 77 of the Succession Act, 1965.

Why Should You Make a Will?

It is important for you to make a will because if you do not, and die without a Will, the law on intestacy decides what happens to your property. A will can ensure that proper arrangements are made for your dependants and that your property is distributed in the way you which after you die, subject to certain rights of spouses and children. It also allows an Individual to provide for the special needs of family members and furthermore it can also be used with proper advice as a Tax planning opportunity. If you do not make a Will you lose your chance to appoint an Executor to handle your affairs and furthermore your Estate will be divided in accordance with the Law of the land and not necessarily in the manner which you might have desired. The question of Intestacy is set out in more detail hereafter under the Heading "What if I don't Make a Will".

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Who Should be my Executor?

This is an extremely important decision since the Office of Executor is gratuitous and the duties imposed on an Executor can be varied and sometimes onerous. Appointing a second Executor is desirable since it covers a situation where one of the Executors dies. It is important that the Executor knows as much as possible about the Deceased's affairs since without adequate knowledge assets can go untraced with the result that the Estate is depleted with ultimate loss to the Beneficiaries. A person will often make a close family Member an Executor since such a person is likely to have a very detailed and intimate knowledge of the Deceased's affairs. Many people also appoint their Solicitor as a second Executor since the Solicitor will also often have information on the Deceased's affairs and will be able to render good advice to the other Executor and assist in the processing of the Grant of Probate. A Beneficiary can be and often is appointed as an Executor. A Beneficiary, however, should never be a Witness to a Will since being a Witness can invalidate the Gift. Persons to be chosen as Executors, therefore, should be trustworthy and capable and you should have confidence in their ability to carry out your wishes as expressed in your Will. They should also have a thorough knowledge of your affairs. Where a Will gives a Gift to a person under the age of 18 years then Trustees should be appointed to hold the Gift for the person in question until he/she attains full age or such age as is designated in the Will. Executors and Trustees can be the same persons. In other words you can appoint the same two persons to act both as Executors and Trustees. When dealing with persons under the age of 18 years one must also consider the question of Testamentary Guardians. This situation can arise in the normal family arrangement where a Parent wishes to provide for young children but wants to deal adequately with the situation should he/she die before the child or children reach full age. The appointment of a Testamentary Guardian can be the most important decision of all since asking someone to take care of your children on your death can be the most onerous request of all. You have to ask yourself the question who would look after my young children if I died. Naturally very few people have a large choice in this matter and normally they would like to see their children reared together by a close relative. This would at least ensure that there was some chance that the children would be reared, preferably together and in a manner which would meet your approval. Executors and Trustees can also be Testamentary Guardians. You can, therefore, appoint two people to do the entire job.

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Should I make my Own Will?

The short answer to this question is no. Your Will may be the most important Document you ever have to sign. It is essential that you be properly advised and that you execute this Legal Document in the proper format. The Laws governing the format of Wills are very strict and even a minor divergence from the Legal requirements can result in your Will being held to be invalid. You will then have lost your one and only chance to leave your property in the manner you desire. The Law will then take its course and an Administrator will be appointed and all you possess will be distributed in accordance with the Laws of Intestacy. In such circumstances the last person on earth you would like to benefit could end up getting a substantial proportion of your assets. This would not be a very happy scenario if it meant that the person you really loved got nothing.

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Revocation of a Will

Section 85 of the Succession Act, 1965 deals with the revoking of a Will. Where a single person has made a Will, the subsequent marriage of the person shall revoke the Will, unless the Will was made in contemplation of that Marriage. In other circumstances, a Will can be revoked either by (1) another Will, (2) a codicil, (3) some writing declaring an intention to revoke the Will, and executed in the manner in which a Will is required to be executed, (4) by the burning, tearing or destruction of the Will with the intention of revoking it.

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Is Making a Will Expensive?

Normally the cost of making a Will varies in accordance with the length of the Will and the time taken. Some wills may require a more intricate tax and state planning. Most Legal Firms, however, will prepare your Will for you for between €100 and €150 plus V.A.T. at 21.5%.

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"What happens if I die having made a Will?"

A person who dies having made a valid will is said to have died ‘testate’. If you die testate, then all your possessions will be distributed in the way you set out in your will. It is the job of the executor(s) you named in your will to make sure this happens. There are legal limits as to how much of your property goes to which person, as set out in law in the Succession Act, 1965. An executor can be a beneficiary under the will.

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What happens if you die without a will or if it is invalid?

A person who dies without a will is said to have dies ‘intestate’. If you die intestate, this means your estate, or everything that you own, is distributed in accordance with the law by an administrator. To do this, the administrator needs permission in the form of a Grant of Representation. When a person dies without a will or when their will is invalid, this Grant is issued as Letters of Administration by the Probate Office or the District Probate Registry for the area in which the person lived at the time of death.

Rules: Distribution of your estate when you die intestate or have not made a valid will

The legal rules governing the distribution of your property apply:
- When you have not made a will
- When the will has been denied probate because it has not been made properly or a challenge to it has been successful
- When the will does not completely deal with all you possessions

The estate is distributed in a number of ways depending if you are survived by:
- a spouse but no children then your spouse gets the entire estate
- a spouse with children your spouse gets two-thirds of your estate and the remaining one-third is divided equally among your children and if any of your children has predeceased that share goes to his/her children
- parents but no spouse or children the estate is divided equally between your parents or one if the other predeceased
- children but no spouse, brothers and sisters or nieces and nephews only estate is shared equally among whichever group.

The requirements for a valid will
- It must be in writing.
- You must be over 18 years of have been married.
- Your must be of sound mind.
- You must sign or mark the will and acknowledge this in the presence of two witnesses.
- The two witnesses must sign the will in your presence.
- The two witnesses cannot be people who will gain from the will and they must be present with you at the same time. The witness’s spouses cannot gain from the will.
- Your witnesses must see you sign the will but they do not have to see what is written.
- The signature or mark must be at the end of the will.

The format of the will
- Your name and address
- A statement that says you revoke all earlier wills e.g. “I hereby revoke all former wills and testamentary instruments made by me and declare this to be my last will and testament”.
- A section of your will that appoints one or more executors to carry out your wishes and their names and addresses
- A residuary clause that sets out how property not effectively dealt with in the will should be distributed.
- Your will should be dated and signed by you and your witnesses.

What if the testator is unable to sign or make a mark?
If you are unable to sign your will due to ill-health or illiteracy, it is acceptable for you to sign your will by means of a mark. If this is not possible you may direct an agent or representative to sign your will for you in your and your witnesses’ presence.

The sound mind requirement
In order to make a valid will, you must not only set out your wishes in a written and witnessed document, but you must also have, in the eyes of the law, the mental capacity to do so. Your solicitor may require you to attend at your general practitioner prior to making your will if there is any doubt as regards your mental capacity. If you suffer from a mental disorder or you suffer from any other condition which may affect your capacity you may require a medical assessment on the day that you make your will.

Changing or revoking your will
To do this you and your witnesses must sign or initial the will in the margin of the page beside the changes. You can also change your will in the form of a memorandum or written note that is signed by you and your witnesses.

Rights of Spouse
If you have left a will, and your spouse has never renounced or given up his/her rights to your estate, then the spouse is entitle to what is called a “legal right share” of your estate. This is one-half of your estate if you do not have children and one-third if you do. Any executor is obliged to grant this share where applicable. You can make a bequest in your will that increases you spouse’s legal rights share but you must specify that this gift is meant to be in addition to his/her legal right share and not part of the share and not an extra element. Your spouse can choose to take either the assets specified under the will or his/her legal right share.

Rights of children under a will
Children do not have any absolute right to inherit their parent’s estate if the parent has made a will. A child may make an application to court if he/she feels that they have not been adequately provided for.

The family home
The surviving spouse may require that the family home be given to him/her in satisfaction of his/her legal right share, if however the house is worth more than the legal right share the spouse may have to pay the difference into the estate.

Gifts that fail
- If your will states that you are leaving an asset to someone and you no longer have the asset or the asset no longer exits
- If you leave a gift to a person who is a witness to your will
- If the gift is clearly identified in you will or it does not conform to its description in the will
- A gift lapses or will no longer apply if a beneficiary dies before the disposer or person who makes the will. If this occurs or the beneficiary refuses to accept the gift, the gift goes back to your residuary clause.

How wills are interpreted
If there is a disagreement, it must be settled in court who will give effect to the testator’s wishes as expressed in the will which are taken from reading the will as a whole.

Status of wills as public documents
After probate has been taken out on a person’s will, that will then becomes a public document and an copy can be obtained by anyone from the Probate Office or relevant District Probate Registry.

Joint Bank Accounts
This is a valid way of deciding how assets are to be distributed in your own life time, but making a will can eliminate potential disputes. With joint bank accounts it is presumed that one party will be fully entitled to the money in the account when the other party dies. Disputes may arise in particular where you have a situation whereby someone opens a joint bank account with a relevant or friend so that they can manage their finances for them.

The decision is such a case will depend on the intention of the person involved, the amount each lodged and the terms of their contract with the bank. It is advisable for people with joint accounts to make clear in their contract with their bank or in their will what exactly their intentions are for the money in such accounts.

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A Brief Summary of Inheritance and Gift Tax with Indexed Class Thresholds is set out Hereafter for the year 2010.
Relationship to Disponer
€414,799.00 (Class A) Child, minor child of deceased child, parents in respect of absolute inheritances only.
€41,481.00 (Class B) Lineal ancestor, lineal descendant, brother, sister, child of brother or sister.
€20,740.00 (Class C) None of the above.
Rates of Tax Inheritance Gift
Threshold Amount Nil Nil
Balance 25% 25%

The aforementioned is a brief overview of the position concerning Wills and Intestacy but if you require any more detailed information or assistance please do not hesitate to contact us and we will be pleased to assist.

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The information given herein is for guidance only no responsible is accepted for any error or inaccuracy. Full legal advice should be obtained.

Connaught Telegraph Headines

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