Dear Claudine,

I have been legally separated for many years and have been thinking about making a Will for a long time. Could you please advise me as to the advantages of making a Will and what is involved.

I look forward to hearing from you.

Thanks

Mary

Dear Mary,

Thank you for your e-mail. Most people make a Will because it enables them to provide for the special needs of family members and ensures that the absolute minimum amount of tax is paid on death. It also allows you to choose who can handle your affairs on your death ie: by nominating a person known as an Executor to administer your Estate. Without a Will, your assets will be distributed under the law of Intestacy. This means that people outside your immediate family members may not receive anything from your Estate and/or members of your family may not receive what you would have wished. If you have children under 18 or any long term dependents, you can appoint a Testamentary Guardian for them. In order for you to make a valid Will, you must be of sound mind and memory and understand that you are signing a legally binding document. You must know the nature and extent of your property and be capable of recalling any people who may expect to benefit from your Estate and decide whether or not to benefit them. It is prudent to appoint two Executors to administer your Estate. It is advisable to seek the advice of a Solicitor as there are many complex rules required in order to make a valid Will. An Executor can benefit from a Will, however, they cannot act as a witness. Neither may their spouse act as a witness. You can make more than one Will for example, if you have property outside of Ireland. It is important to note that joint property passes by survivorship outside of a Will to the remaining joint tenant unless it is registered in the joint names of the parties as tenants-in-common. This means that a person’s half share of property will not go to the other joint registered owner but instead will be distributed according to the terms in their Will. Even though you are legally separated, your estranged spouse may still make a claim against your Estate and may be successful if he can establish that proper provision was not made for him at the time of your Separation and/or his circumstances have dramatically deteriorated. This right ceases upon Divorce. If you have children, they do not have an automatic right to inherit from you, however, the Succession Act 1965 does allow a child to bring an Application on the basis that proper provision has not been made for him/her in your Will. It is important to note, that a person who takes a benefit on the death of another may have to pay Capital Acquisitions Tax currently at 25%, if the amount of the benefit combined with any other benefit previously taken is over a certain threshold, however, certain exemptions do exist.
I hope that the above information is helpful to you.

With Every Good Wish.

Claudine