By Donna Wilson, Wilson Daly Solicitors, Bridge Street, Dunmanway. Telephone 023 8845796 www.wilsondalysolicitors.com
With the emotions that loved ones go through after someone has died, I have found most people just want to know from their solicitor ‘what happens next?’. By making a will you can give your loved ones the guidance and help they need during the difficult time following death. In short, your will sets out who is to carry out the legal work and distribute your estate, and most importantly what each person is to receive from your estate. Unfortunately, always telling someone that you will give them your house or jewellery will not guarantee that they will receive it. In fact making promises, without having a will to support them, could guarantee upset, confusion and even court cases.
Modern Ireland is made up of a variety of family situations and some would say that our laws are outdated and unfair when it comes to administering a deceased person’s estate. In fact the law which dictates/directs the division of inheritance when there is no will derives from the Succession Act of 1965; family dynamics were a lot more uniform fifty years ago.
The following are only a few examples of common living arrangements that can cause hardship and large legal bills if no will is made;
Situation 1: A couple co-habit (they are not married) and only one of them owns the house/property in which they both live in. If the property owning partner dies their partner will not inherit the property; in fact if they want any chance of staying in the house they will have little or no choice but to start court proceedings.
Situation 2: A brother and sister live together in the family homestead (both parents are deceased) and perhaps there are other siblings who have settled and live elsewhere, even abroad. If only one of the siblings living in the house or on the farm legally owns it and dies without leaving a will, the house/farm will be automatically divided between all the siblings. This can be extremely unfair to the sibling who has lived in there for their whole life. They could be left in a situation where the house/farm has to be sold.
Situation 3: Perhaps you and your partner have never married but you have children together? Again if it is your partner that legally owns the property then it is possible that your children could end up owning your house over you.
By making a will you can also consider the most tax efficient way of leaving your estate to your loved ones. Spouses and civil partners inherit the whole estate tax free but this does not apply to any other relative. There are various exemptions from tax available if the right situations arise. By talking to your solicitor or accountant you can tax plan in the most efficient way.
Making a will is not a big expense – considering what it could save your family and loved ones in the future it is a mistake not to have one. The first step is to make an appointment to visit your solicitor – when making the appointment make sure to tell them it is to discuss your will.
When you visit your solicitor it helps if you have already thought about and prepared the following:
Who will be your executors? An executor is a person who you appoint to carry out the legal work and distribute your estate when you die. They can be anybody of your choosing but you must have at least one and it is preferable that you choose two executors.
Do you need to appoint trustees? If you have young children or a child with a mental disability then the trustee will look after the assets in your estate on behalf of the beneficiary. You need two trustees and your executor can also be a trustee.
Do I need to appoint guardians? A guardian is a person you choose to take over your role as parent in rearing any children who are under the age of 18 years. So if you have young children you do need to appoint a guardian/s. Make a List of your children’s names, ages and addresses if applicable. I know you know your children inside out but your solicitor doesn’t, so just write it down and hand it over at the appointment.
What are your assets? List your bank accounts, Credit Union account, Post Office account, life policies, shares in local co-ops etc. List all your property, be it in Ireland or abroad.
Once you have had your first meeting with your solicitor he/she will then proceed to draft a will for you, based on the instructions you have given. If you are well prepared going in to your solicitor, two visits is the most it should take to get your will finalised.
What happens when I die if I have not made a will? Where there is no will your estate is divided in accordance with the Rules of Intestacy. These rules specify how your estate is divided/inherited on your death. The following is a short synopsis:
1. If you have a spouse or civil partner and no children, then on your death your spouse or civil partner will inherit everything;
2. If you have a spouse or civil partner and children, then your spouse or civil partner will receive two-thirds of your estate and your children will get the remaining third.
3. If you do not have a spouse or civil partner your entire estate will go to your children.
4. If you do not have a spouse or civil partner or children then your parents are entitled to your entire estate.
5. If you do not have a spouse, civil partner, children or parents then your estate is divided equally between your brothers and sisters.
6. If you die without having any relatives your entire estate goes to the State
Remember this only applies if you do not have a will. If you make a will you can set out what you would like to happen to your estate on your death.
If you would like to discuss making a will, please contact Donna on 023 8845796.