Eoghan P Clear Solicitors

Tel: +353 (0)1 6445777  |  Email: info@clearsolicitors.ie

19th December, 2012

Why should I make a Will?

We are often asked by clients why they should consider making a will. In particular, some people take the view that they have nothing to leave, that the law will operate to give effect to their wishes anyway or that spending time considering death is too morbid or upsetting.

Whatever your age or your personal circumstances, it is extremely important that you make a will. If you die without having made a will, you are said to have died “intestate”. If you die intestate, this means that your estate will be divided according to specific rules set out in the Succession Act 1965. It should also be noted that for grieving family members who need to deal with the process of administering your estate, the process is more costly and cumbersome in the absence of a will.

The intestacy rules distribute your property and assets according to defined family lines. While they primarily ensure that priority is given to spouses and close family members, people are often surprised to discover that under the rules their spouse will not automatically inherit the entire estate. For example, if you have children they would automatically be entitled to one third of your estate with your spouse being entitled to two thirds.

Other examples of how the intestacy rules might apply include the following:

  • Married (or registered civil partner) with no children – your Spouse (or civil partner) will inherit your whole estate.
  • Married with children – your Spouse will inherit two thirds of your estate and your children one third of your estate.
  • Single with no children – your Parents inherit your whole estate, in equal shares.
  • Single with no parents and no children – then your Brothers and Sisters will inherit your estate in equal shares.
  • Single with no parents, children, brothers or sisters surviving – then your estate will go to any Nieces and Nephews and otherwise to next of kin in the following order:
    • grandparents,
    • if none surviving, then to aunts and uncles,
    • if none surviving, then to cousins.

There are various personal circumstances arising in everyday life that make having a will in place to express your wishes essential. These include:

A. If you have children:

In the tragic case that both you and your spouse or partner were to die at the same time, under a will you can appoint a person of your choosing to be Guardian or Trustee to care for your children. As well as taking care of your children on a day to day basis, this person will manage your estate on their behalf until they reach adulthood. This should provide comfort to you knowing that should the unthinkable happen, you have made arrangements for people whom you trust to take care of your children.

Similarly, if you have a child who requires greater financial assistance than your other children (e.g. due to a disability), a will allows you the flexibility to make whatever provision you think appropriate in your specific circumstances.

B. If you are unmarried, but in a long-term relationship:

The state will not automatically recognise your partner’s right to inherit a share in your estate and your partner may be in the position of having to apply to the Courts if you have failed to make your wishes clear. In order to properly provide for your partner in the event of your death (or indeed make it clear that for whatever reason you do not wish to do so), it is necessary to draft a will.

C. If your marital status has changed:

Many people are not aware that when they get married, any will made prior to that marriage becomes null and void. Furthermore, should you become separated or divorced this will not automatically invalidate any will made prior to that separation or divorce and unless otherwise expressed in a court order or separation agreement, it is possible that legal rights of your spouse to a share in your estate may not be extinguished so individual circumstances need to be looked at closely and new wills drawn up.

D. If you have accumulated wealth, assets or own property:

When you make a will you effectively decide how you would like your property to be shared out. This will allow you to engage in effective tax planning to ensure that the amount of Capital Acquisitions Tax (CAT) payble by beneficiaries under your will can be minimized if you are at a point in life where you have accumulated wealth or have specific assets such as a farm, business or property to consider.

Many people own properties over which there is an outstanding mortgage and for that reason they don’t see the property as an asset but it must be remembered that in most cases, there is a mortgage protection policy in place that would pay off the mortgage in the event of death meaning that a will should be in place to express how you would like to leave the property in the event of death.

Other advantages

There are many other advantages to creating a will. These include being able to set out specific funeral arrangements and being able to pass on heirlooms and personal items to loved ones. Clearly expressing your wishes under a will may minimize any arguments between family members and give them peace of mind in knowing that your wishes are being followed.

Another advantage is that under a will you can appoint executors of your choosing to administer your estate and the wishes expressed under your will. Being able to choose these people should provide you with peace of mind that someone competent and trustworthy is in charge of dealing with this important task.

Conclusion

Personal circumstances change regularly throughout your life and for this reason it is extremely important to have a will in place. We always recommend that you consider your will to be a living document that you review on a regular basis and not something set in stone to be put away in a drawer and dusted off after 50 years when it may no longer be fit for its intended purpose.

Should need any further information about making a will, please call us on 01-6445777 or contact us here.

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