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

Anne

Dear Anne,

Thank you for your e-mail. The reason why most people make a Will is because it is the only way of safe-guarding their assets, enabling them to provide for the special needs of family members. It also acts as an opportunity to ensure that the absolute minimum amount of tax is paid on death. Making a Will also allows you to choose who can handle your affairs on your death ie: by nominating an Executor to administer your Estate. When you die, your affairs must be wound up. There are generally outstanding bills which require to be paid and property which needs to be distributed. Making a Will simplifies all of this and allows you to decide who gets what, with minimum delay and hassle. 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. It is extremely important for you to make a Will if you have any children under 18 or any long term dependents. You can also appoint a Testamentary Guardian for children under 18 and/or dependents and you can include a term to this affect in your Will. A testamentary guardian is a trusted person who will be responsible in part or in full for the welfare of your children. 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. Once these criteria are fulfilled, it will be necessary for you to appoint an Executor who will administer your Estate in accordance with the terms of your Will. It is prudent to appoint two Executors in the event that the first Executor named in your Will pre-deceases you otherwise your assets will vest in the president of the High Court until the Grant of Probate issues. It is advisable when appointing a family friend or member as an Executor that their consent is obtained. The function of an Executor is to extract a Grant of Probate 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. Where these formalities are not respected, the Will may fail and in such circumstances, the law in relation to Intestacy will then determine how your property is distributed. An Executor can benefit from a Will, however, they cannot act as a witness. Neither may their spouses act as a witness. An Executor should be over 18 and be of sound mind and not have been declared a bankrupt otherwise they will be prohibited from acting on your behalf. The following are a non exhaustive list of what should be included in a person’s will ie: Their full name and address, a revocation/cancellation of any earlier Wills, the appointment of preferably two Executors, a list of gifts of money or goods and/or property, a residuary clause which sets out how any leftover Estate is to be distributed, the date the Will has been signed by you, your signature at the end of the Will and an attestation clause which is evidence that the two witnesses each signed the Will in the presence of each other and witnessed you signing the Will. You may alter your Will at a later date, however, all changes, additions and alteration must be signed, dated and witnessed in the same way as the Will was made. You can make more than one Will for example, if you have property outside of Ireland. However, it is vitally important that the revocation clause at the beginning of your Will, revoking all former Wills makes clear reference to the foreign Will dealing with the property in the other jurisdiction and to state that you are only revoking previous Wills dealing with your property in Ireland. Where property is registered in the joint names of the parties as joint tenants, it is important to note that joint property passes by survivorship 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 your Will. Where property is a family home, the Succession Act protects the surviving spouse from disinheritance. Even though you are legally separated, your 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. Your spouses rights may be limited by the terms of such Judicial Separation Order or Separation Agreement. Even though you decide who is to benefit from your Will, it is important to remember that your estranged spouse may still make a claim against your Estate. This right ceases upon Divorce. If you have children, they do not have an automatic right to inherit from you, however, there is a provision under the Succession Act 1965 which allows a child to bring an application on the basis that proper provision has not been made for them in the Will. The Court will decide whether or not a parent has failed to make proper provision for their child or children, however, payments made to a child during lifetime will be taken into account in deciding whether proper provision was made.

If you decided not to make a Will or the Will which you made was invalid, you are deemed to have died intestate. Where a person dies intestate, their property is distributed according to the law of intestacy laid down in the Succession Act 1965 in particular, if you left your surviving spouse and children, the law of intestacy states that your spouse would take two thirds of your Estate and the remaining one third of your Estate would be distributed between your children in equal shares. If you leave a spouse and no children, your spouse would take the whole of your Estate. If your spouse pre-deceased you, then your children would take your entire Estate. If you had no spouse and no children, then your Estate would be divided between your mother and father. In default of parents, your brothers and sisters would take the whole of your Estate in equal shares. It is important to note, that a person who takes a benefit on the death of another may have to pay Capital Acquisitions Tax, if the amount of the benefit combined with any other benefit previously taken is over a certain threshold. Spouses are exempt from paying inheritance tax. From the 8th of April 2009 a child may inherit from a parent up to €434,000.00 free from tax. If a parent takes an absolute inheritance from a child then they too would fall into this threshold. Inheritances between siblings have a threshold of €43,400 and €21,700.00 between strangers. Thereafter, Capital Acquisitions Tax is payable at 25% on gifts/inheritances taken after the 8th of April 2009, however, there are exemptions depending on the individual circumstances of the beneficiaries.

I hope that the above information is helpful to you.

With Every Good Wish.

Claudine