making
your irish will
This is not simply a matter of putting your signature to a piece of
paper in the presence of two witnesses.
Many families will have seen unhappy fallout arising from the signing
of poorly thought out wills executed without considered legal advice.
What I need from you in order to advise you in relation to your
proposed will:
(unless I know you already) I need evidence of your identity in order
to comply with the Anti Money Laundering Regulations. This is simply
the same as if you were opening a bank account, that is: photographic
evidence (your passport or driving licence) to confirm your identity,
along with a utility bill addressed to you (to confirm your address).
You need to assemble some information in relation to your assets. Before
you consider the contents of your will it is important to have a reasonable
idea as to the value of whatever property you have to leave. Don't worry
about having exact figures. If you are truly short of information as
to your assets, but clear as to your wishes, it is possible (and desirable)
to make a temporary will which can be looked at later on when you have
fuller information together).
In listing your assets you need to consider the question of the true
ownership of what you ordinarily describe as "your property".
Example: a property in joint names - what is the relationship in law
between the donor and the donee? what was the intention of the parties
in placing the property in joint names? who contributed the funds? when
was it set up as joint ownership? who has enjoyed the benefit of the
property since it was placed in joint names? was it the intention, and
is it still the wish of the joint owners, that the property would go
to the survivor of them? (and even if one of the joint owners might
be permitted even now to sever the joint ownership?) Another example:
Insurance policies and other such payments nominated to be paid to someone
else on your death - you may not have control over the destination of
these funds.
You have to consider who you will appoint as your executors. Your executors
are the people who will look after your affairs and carry out the terms
of your will after you death. It is allowable for your executors to
benefit from your will (provided neither they nor theiri spouses act
as witnesses) . If any of your beneficiaries will be under age at the
date of your death you have to consider who will act as trustees to
look after their interests until they come of age. One or more of your
proposed beneficiaries may be suffering under a disability and you may
wish to have that person's gift administered by someone else.
If you are (or have been) married (and even if you have been divorced)
you will or may have an obligation to provide a certain share to your
spouse or former spouse.
Under Section 117 of the Succession Act (as amended) you have an obligation
to consider the position of your children (whether born inside or outside
of marriage).
Depending upon the relationship in law between you and your proposed
beneficiaries, and depending upon the question of whether your beneficiaries
may have received other gifts from you or from other people, there will
come up for consideration the question of Capital Acquisitions Tax and
how it might be lawfully minimised in the case of your proposed beneficiaries.
You may have specific wishes as to what is to happen if one or more
of your intended beneficiaries dies before you.
You may wish to weigh up the advantages and disadvantages of making
a provision for someone in your lifetime compared with the idea of leaving
that person a gift in your will.
You may wish to leave gifts to a deserving charity - such gifts will
be exempt from Capital Acquisitions Tax.
You might need to consider whether it might make sense to place property
in joint ownership now or perhaps to allow someone to take up residence
now in a property intended to be given to that person on your death.
If you have property outside Ireland you will need separate advice in
the local jurisdiction as to how that property is to be handled on your
death. You must take particular care to ensure that any will which you
make here does not cancel a will which you have made abroad in respect
of that property (and vice versa).
The above list is by no means exhaustive but even from the above you
will see that there is a great deal of care and attention required and
a lot to be thought about when you are considering making or amending
your will.
What will it cost?
That
will depend upon the nature of the will and the matters requiring special
consideration because of your own circumstances and wishes.
On receipt of instructions as to your circumstances and wishes I will
advise you of the estimated fees in advance of preparing your will.
You can be sure that whatever you spend in having a suitable will prepared
will not be a waste of money. And remember that this is a useful occasion
on which to carry out a general legal health check on your affairs.
You will not be making a will every day and you do need to review your
position from time to time.
Reviewing your will
You
should review your will from time to time. Circumstances change, the
value of your assets will change, beneficiaries may die before you,
and of course your subsequent marriage will revoke your will (unless
your will was made in contemplation of that marriage).
What happens if you fail to make a will?
Unless
you leave a valid will, your property, on your death, will be divided
according to the intestacy provisions of the Succession Act 1965.
This division may not be as you expected and it may not be what you
would have wished if you had made your own choice.
For example if a married person dies intestate leaving a spouse and
children the surviving spouse is only entitled to two thirds of the
estate - the children are entitled to one third between them - problematical
in the case of a young family.
The making of a will is important - never to be put on the long finger
Subject to certain limitations, (for example a spouse's statutory entitlement)
by making a valid will you can decide who will have your property on
your death.
Taking precautions
It is useful to complete a personal assets sheet on which you will list
personal information, your property details, note the whereabouts of
your important documents, including your will, and note your account
numbers - this will ease the burden on your executors and help ensure
that investments or savings accounts are not left undiscovered in dormant
accounts after your death. I will provide you with such a sheet at the
same time as you sign your will.
Finally
you have signed your will - is it safely stored? - in good condition?
- unaltered? - does your executor know where to find it? - remember
if the original will was last in your possession and cannot be found
on your death there is a presumption in law that you have destroyed
it with the intention of revoking it
