Set out below are 50 things you may or may not know about making a will.
Quite frankly, the important thing to know is that it is a good idea to make a will for these two critical reasons:
1. YOU will decide who gets what
2. YOU will decide who administers your estate
Here are 50 other things you should know about making a will:
- The requirements for a valid will are set out in section 77 of the Succession Act, 1965.
- To make a will you must be of sound disposing mind and at least 18 (or if younger, married)
- If you don’t make a will an intestacy situation arises; this means that your property will be distributed in accordance with the Rules of the Superior Courts and the Succession Act, 1965
- Making a will leads to a cheaper and quicker administration of the estate through a Grant of Probate
- If you leave a benefit in your will to your child who predeceases you the benefit will go to his estate, not to his children (section 98 of the Succession Act, 1965)
- You can prevent this happening by making provision in your will that the benefit will go to, for example, your child’s children
- You can engage in tax planning/minimisation of capital acquisitions tax by making a will
- Your choice of executor is critical-(s)he handles your affairs and extracts the grant of administration
- You can make as many wills as you want
- The only will that counts though is the last one before you pass away
- Your will must be in writing-it could be carved in stone
- You must sign it at the end of the will and your signature must be witnessed by 2 people
- Your witnesses cannot benefit from your will so if you intend leaving either one (or both) something ensure you get a different witness(es) (your solicitor can take care of this)
- Your will must contain your name and address
- Your will must be dated
- Your will should revoke all previous wills (if any)
- A list of legacies refers to your money or goods
- A list of devises in your will is a list of your real property
- Your will is not revoked by divorce
- Your will is revoked by marriage
- You cannot appoint alternative executors because your will is likely to fail for uncertainty eg “I appoint Mary or Sean to be my executor”
- If you have children under the age of 18 you should appoint trustees and/or guardians
- The spouse of any of your witnesses cannot benefit from your will
- If an intended beneficiary predeceases you and there is no clause in your will dealing with the residuary of your estate that benefit will be distributed as if you died intestate
- Your child can bring a legal action against your estate under section 117 of the Succession Act, 1965 if you fail in your “moral duty” towards him/her
- Your spouse has a legal right to a share of your estate thanks to section 111 of the Succession Act, 1965
- If you make a will your spouse is entitled to 1/3 of your estate if you leave children and ½ of your estate if you have no children
- If you don’t make a will your spouse is entitled to 2/3rds of your estate if there are children and the whole shooting match if there is no children
- Children referred to at 26, 27, 28 above includes martial and non-marital children and adopted children
- Your spouse can cease to be a spouse in 4 ways:By renunciation (section 113, Succession Act, 1965), By separation (Judicial Separation and Family Law Reform Act, 1989 and Family Law act, 1995), By divorce (Family Law(Divorce) Act, 1996), By unworthiness to succeed (Succession act, section 120)
- If your will is valid, there is a presumption of testamentary capacity
- The test for testamentary capacity was set out in an 1870 case: Banks v Goodfellow
- There are 3 aspects to testamentary capacity: a) you must understand you are making a will to dispose of your assets, 2) you must know the extent of your estate, 3) you must be able to give consideration to those who might expect to benefit from your will
- Certain situations will give rise to a presumption of undue influence; generally where the relationship of trust and confidence existed eg doctor/patient
- Your children are not entitled to any specific share of your estate, unlike spouses (see 26 above)
- If you don’t make a will though your children (strictly “issue”) are entitled to 1/3
- Your children can bring a legal action against your estate under section 117 of the Succession Act, 1965 for your failure to discharge your moral duty to them
- The time limit for bringing such an action is 6 months; and it is a strict one
- You can create a trust in your will
- A trust is an equitable obligation binding someone (a trustee) to deal with your property for the benefit of beneficiaries whose identity may not be known yet
- Your trustees will be the legal owners of your trust property but they must carry out the terms of the trust which you will decide
- If your trust property is “real property” the trust must be evidenced in writing
- A trust is not a legal entity so cannot be bound by a legal contract
- The Land and Conveyancing Law Reform Act, 2009 has made huge changes in trust law in Ireland
- Your estate is administered by your personal representatives-an “executor” in a testate situation and an “administrator” in an intestate situation
- Your executor’s job is to extract a grant of probate to “prove” the will and deal with your estate
- Your executor does not have to act and may renounce; but once (s)he takes on the role (s)he can’t renounce later
- Your executor’s powers come from the will itself and the Succession Act, 1965
- Capital acquisitions tax is the tax payable by beneficiaries of your will
- The amount to be paid can be reduced/minimized because there is a wide range of reliefs and exemptions, provided you make a will.
Put on the long finger?
Many of us put making a will on the long finger, even though we know it is the right thing to do.
Don’t make this mistake.
You can have your will drafted quickly and easily with the minimum of fuss-simply use the contact form to arrange a consultation with Terry and get it sorted.