50 Things You Should Know About Making a Will in Ireland

Here are 50 things you should know about making a will:

making-a-will-ireland

  1. The requirements for a valid will are set out in section 77 of the Succession Act, 1965.
  2. To make a will you  must be of sound disposing mind and at least 18 (or if younger, married)
  3. 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
  4. Making a will leads to a cheaper and quicker administration of the estate through a Grant of Probate
  5. 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)
  6. You can prevent this happening by making provision in your will that the benefit will go to, for example, your child’s children
  7. You can engage in tax planning/minimisation of capital acquisitions tax by making a will
  8. Your choice of executor is critical-(s)he handles your affairs and extracts the grant of administration
  9. You can make as many wills as you want
  10. The only will that counts though is the last one before you pass away
  11. Your will must be in writing-it could be carved in stone
  12. You must sign it at the end of the will and your signature must be witnessed by 2 people
  13. Your witnesses cannot benefit from your will so if you intend leaving either one (or both) something get a different witness(es)
  14. Your will must contain your name and address
  15. Your will must be dated
  16. Your will should revoke all previous wills (if any)
  17. A list of legacies refers to your money or goods
  18. A list of devises in your will is a list of your real property
  19. Your will is not revoked by divorce
  20. Your will is revoked by marriage
  21. You cannot appoint alternative executors because your will will fail for uncertainty eg “I appoint Mary or Sean to be my executor”
  22. If you have children under the age of 18 you should appoint trustees and/or guardians
  23. The spouse of any of your witnesses cannot benefit from your will
  24. 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
  25. 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
  26. Your spouse has a legal right to a share of your estate thanks to section 111 of the Succession Act, 1965
  27. 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
  28. 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
  29. Children referred to at 26, 27, 28 above includes martial and non marital children and adopted children
  30. 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)
  31. If your will is valid, there is a presumption of testamentary capacity
  32. The test for testamentary capacity was set out in an 1870 case: Banks v Goodfellow
  33. 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
  34. Certain situations will give rise to a presumption of undue influence; generally where the relationship of trust and confidence existed eg doctor/patient
  35. Your children are not entitled to any specific share of your estate, unlike spouses (see 26 above)
  36. If you don’t make a will though your children (strictly “issue”) are entitled to 1/3
  37. 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
  38. The time limit for bringing such an action is 6 monts; and it is a strict one
  39. You can create a trust in your will
  40. 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
  41. 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
  42. If your trust property is “real property” the trust must be evidenced in writing
  43. A trust is not a legal entity so cannot be bound by a legal contract
  44. The Land and Conveyancing Law Reform Act, 2009 has made huge changes in trust law in Ireland
  45. Your estate is administered by your personal representatives-an “executor” in a testate situation and an “administrator” in an intestate situation
  46. Your executor’s job is to extract a grant of probate to “prove” the will and deal with your estate
  47. Your executor does not have to act and may renounce; but once (s)he takes on the role (s)he can’t renounce later
  48. Your executor’s powers come from the will itself and the Succession Act, 1965
  49. Capital acquisitions tax is the tax payable by beneficiaries of your will
  50. The amount to be paid can be reduced/minimized because there is a wide range of reliefs and exemptions, provided you make a will.

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