THE IMPORTANCE OF MAKING A WILL

November 2021

 

The feeling of having made a will and knowing that you are not leaving problems behind for your loved ones when you pass is invaluable. In utilizing this clear legal document, you have the opportunity to ensure that your wishes are recorded precisely as you wanted.

Why should I make a will?

Making a will ensures that your money, property and possessions are distributed to the people you choose. It allows one to provide for any special needs of family members, for example a child with special needs. It also acts as an opportunity to ensure that the minimum amount of tax is paid on death.

Where someone dies leaving a Will they are said to have died “testate”. If someone doesn’t make a will, the person is said to have died “intestate”, and their estate is disposed of in accordance with the Succession Act,1965. Under this Act, the person who can administer your estate will be decided by court rules and this could result in a situation where someone you would not have chosen will be in charge of your affairs after your death.

Providing for your children

Having a will in place is imperative when there are minor children involved. It enables you to decide who should be appointed guardians and trustees in the event that both parents should die at the same time.

These people will be charged with looking after your children’s assets until they come of age and will look after decisions such as their health, education, and general wellbeing.

You may decide to set up a trust for your children so that they can be provided for as per your wishes. It’s advisable to appoint at least two trustees and to select people who you know will work well together to ensure that the provisions of the trust are carried out in a smooth manner.

Who should I leave my estate to?

Ultimately this is a matter for you, the testator. However, there are a few things to be mindful of and one of them is that any property held jointly such as bank accounts, or real property, will automatically transfer to the joint holder at the time of your passing. These assets fall outside the Will and thus cannot be gifted in your Will. Likewise, life insurance policies and savings accounts which are nominated in favour of a particular individual will fall outside the will.

In situations where a testator is married, their spouse is entitled to one third of the value of the estate where there is a Will in place. This applies even if there is no provision made in the Will for a spouse. Simply put, this right is automatic.

For those married without a Will, the deceased’s spouse gets the whole estate where there are no children. If there are children, the spouse gets two-thirds with any children sharing the remaining third. If you are separated from your partner, but not legally separated and have no will in place, then you are legally married, and your former partner would receive two-thirds of everything regardless of what your wishes might have been.

Tax planning

A will can help you ensure that the minimum amount of tax goes to the State, unlike in an intestacy situation where there is no discretion. They can be drawn up to make the most of the available tax thresholds for certain classes of beneficiaries and to limit their exposure to tax.

Children can receive tax-free gifts or inheritance from their parents up to a maximum of €335,000. Parents who wish to gift more than this can chose to disburse their wealth over time. They can gift €3,000 a year tax-free to their child without impacting their threshold. This process is known as the small gift exemption.

Common errors in the making of wills

Below are some things to be mindful of when making a will:

1. A witness or his spouse can not benefit under the will

2. A will is revoked by marriage, but not by divorce

3. Make sure there is complete clarity in the wording of the will. If a will is poorly worded or the testator’s intentions are unclear, this can cause the will to fail. Any disagreement over the intention or meaning of the words in a will can lead to drawn out legal disputes, resulting in the estate being liable for the costs and in turn being diminished

Making a will is not something that should be done at the last minute, nor is it something for the elderly only to worry about. It is something that should be given due consideration and should be considered by all age groups, especially by couples with children.

If you require any assistance in the making of your will, or indeed if you have any questions on this matter, please feel free to contact our office at info@meaghersolicitors.com

Mike Collum

Trainee Solicitor

 

Disclaimer  

This article contains general information based on Irish law and does not constitute legal advice nor is it intended to provide a comprehensive or detailed statement of the law.