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| Why should I make a Will? | | | | It is important for you to make a Will for a number of reasons: | | | | (i) | To ensure your wishes are carried out after your death. If you do not do this, the law on intestacy will decide what happens to your Estate. This could be entirely contrary to your wishes. |
| | (ii) | To minimise Tax for your Beneficiaries. |
| | (iii) | To make proper provision for your dependents and if necessary to appoint a Testamentary Guardian for minor children (a surviving married parent is automatically a Guardian). |
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| What happens if I die without a Will? |
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| Where you die without a Will (Intestate), the law provides that if you are married and have children your Spouse or Civil Partner is automatically entitled to two thirds of your Estate and your children to one third of your Estate. |
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| If you are married with no children your Spouse or Civil Partner is automatically entitled to your entire Estate. |
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| If you are single and have no children your Estate will go to your parents if they are still alive. If you are single and your parents are deceased, your Estate will be divided equally among your brothers and sisters. (There are other rules governing what happens if one or more of your siblings predecease you or if you die without siblings). |
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| What is my Estate? |
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Your Estate covers all assets owned by you at date of death. This includes property, savings, Investments, options and Death Benefits (e.g. under a Life Policy or Benefits under a Pension Scheme).
Assets held in joint names generally go to the survivor unless a contrary intention is clear. Accordingly assets in joint names will generally not form part of your Estate.
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| Can I leave my Estate to anyone I want? |
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| No. The law provides that where you have a Spouse or Civil Partner and children, the Spouse or civil Partner has a legal right to one third of the Estate. If you have a Spouse or Civil Partner and no children, the Spouse or Civil Partner is entitled to one half of the Estate. These rights take effect regardless of what is contained in the Will unless the surviving Spouse or Civil Partner has renounced his or her rights. |
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| In the case of Separation, this legal right is not automatically revoked as the parties remain married. However most Separation Agreements or Judicial Separations provide for renunciation of Succession Rights. |
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| In the case of Divorce or Dissolution of a Civil Partnership, the legal right ceases to exist as the parties are no longer married or party to a Civil Partnership. However notwithstanding this, the Courts may make an Order providing for the surviving ex-Spouse or former Civil Partner from the Estate if the Court believes proper provision was not made for the ex-Spouse or Civil Partner during the lifetime of the Deceased. An Order can be made at the time of the Divorce or Dissolution of Civil Partnership (or any time thereafter during the lifetime of the other Spouse or Civil Partner) providing that either or both Spouses shall not on the death of either of them be entitled to apply for relief. |
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| What rights have my children? |
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| Children do not have automatic rights to a parents’ Estate (unless the parent dies without a Will). However if a child feels adequate provision has not been made for him or her, they may bring an Application to Court known as a Section 117 Application. The Courts will then consider whether the parent has “failed in his/her moral duty to make proper provision” for the child in the particular circumstances of each case. |
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| How do I make a Will? |
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| You should talk to your Solicitor to discuss your own particular circumstances and then give instructions for your Will. Your Solicitor will generally need to know the following: |
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| (1) | What assets you have or will have in the event of your death. |
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| (2) | Who you will appoint as Executors/Trustees? The Executor is the person responsible for ensuring the proper administration of your Estate and taking out a Grant of Probate. Trustees are generally appointed where persons under eighteen years will benefit from your Estate. You will need at least one Executor and two Trustees (the Executor and Trustees can be the same persons and can also be Beneficiaries themselves under the Estate). |
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We have prepared a useful Instruction Sheet which will help you in giving instructions to your Solicitor. |
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| Can I make my own Will? |
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| It is possible to draft your own Will but this is not recommended. The Succession Act 1965 imposes strict legal requirements for making Wills and failing to comply with any of these can result in your Will being overturned or costly Litigation among your Beneficiaries. Instructing a Solicitor will ensure your Will is drafted and executed in the correct format and that you have proper advices on all aspects of your Estate. |
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| What is the cost of a Will? |
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| The cost of a Will will depend on a number of factors including how much time your Solicitor spends advising you on the Will and finalising the Will. In many cases Wills are straightforward and can be finalised on the same day at a relatively modest cost.. In other cases Will are more complex and your Solicitor may have to investigate the options for you. |
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| Changing my Will |
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| Once made, a will can be changed at any time and should be kept under review to take account of changes in your personal circumstances and legislation. You should note that a Will is automatically revoked on marriage or Civil Partnership unless made in contemplation of that marriage or Civil Partnership. |
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| Note: | | | The above is a general summary only and is not intended as legal advice.
For clear and comprehensive advice on your particular circumstances, please contact Paula Duffy Solicitor, 16-18 Harcourt Road, Dublin 2 (Phone: 01 478 4895/478 4070). email: pd@pauladuffy.ie for an appointment to discuss your Will, taking out a Grant of Probate or any issue relating to Estates. |
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