Wills & Probate

• Who can make a Will?
• Why should you make a Will?
• Who should be my executor?
• Should I make my own Will?
• Revocation of a Will
• Is making a Will expensive?
• What if I don’t make a Will?
• Right of spouse under Succession Act
• Inheritance and gift tax

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 that you make a Will since you place yourself in a position to provide for the distribution of your property by means of a clear legal document which will only take effect when you die. It 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?".

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.

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.

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.

Is making a Will expensive?

The answer to this question is also no. Normally the cost of making a Will varies in accordance with the length and difficulty of the Will. Most legal firms, however, will prepare your Will for you for €250 per person (Plus VAT) and this includes the storage of the Will in a safe place.

What if I don’t make a Will?

If I don't make a Will then the estate will normally be administered by my closest relative and my property will be distributed in accordance with the law of the land. The rules governing intestate succession for deaths occurring on or after the 1st January, 1967 are set out hereafter with the order of entitlement placed in brackets.

Right of spouse under Succession Act

The act governs two situations in relation to the share to which a spouse is entitled on the demise of his or her partner. In circumstances where a Will has been created by the demised partner, the act provides that at all times the surviving spouse will be entitled to a share as a legal right. In circumstances where there is a spouse and no issue, the spouse is entitled to one-half of the estate, irrespective of the provisions of the Will. In circumstances where there is a surviving spouse and children, the spouse is entitled to take a one-third of the estate, irrespective of the terms of the Will. In circumstances where there is a spouse and grandchildren or other remoter issue, but no immediate children, the spouse is entitled to take one-half of the estate, irrespective of the provisions of the Will. In circumstances where there is no Will, i.e. where an intestacy is created, where there is a surviving spouse but no children, the spouse is entitled to the whole estate. In circumstances where there is a spouse with children, the spouse is entitled to take two-thirds of the estate and in circumstances where there is a spouse and grandchildren, or other remoter issue, the spouse is entitled to two-thirds of the estate.

A brief summary of inheritance and gift tax with indexed class thresholds is set out hereafter.

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.