Wills

A Will is a document that states in clear terms how you would like your assets or property to be distributed after your death.  It is a statement of future intention which only becomes effective on death.  Making a will is quite a simple and inexpensive process but extremely important nonetheless. Good planning gives you better control over your future. It gives you direction on how to use your resources whether they are small or large. An ideal outcome from this planning would be peace of mind in later years. Begin your planning today.

Why Bother Making a Will:

The putting in place a Will is without doubt one of the most important provisions you can make in relation to your property and in providing for your family or partner for the future.  People are slow to make proper provision because of the reluctance to deal with matters concerning death and succession.  The advantages however of putting in place a Will are numerous and some of these are:-

1. It is a simple and inexpensive legal document which can provide for   the effective transfer of property to an intended beneficiary.
2. It can be amended at any stage as it does not take effect until date of death.
3. It is particularly important in an instance where the beneficiaries are minor children ie. under the age of 18 years where it will provide for the appointment of two trustees to hold the assets in trust for the benefit of the minor children.
4. It can be an effective tool for the minimisation of Capital Taxes ie. Gift Tax or Inheritance Tax through each case has to be examined in its own context to decide on what measures could be put in place to reduce the beneficiary's tax liabilities.
5. Intestate Succession i.e. the rules of distribution on death without a Will.   The person who is next entitled both to administer an estate and to benefit in an estate are determined in accordance with the statutory rules of entitlement as set out in the Succession Act 1965 and the order of that entitlement may not always reflect the testator's intentions and wishes.  Therefore in order to ensure that those you intend to benefit in your estate actually do, it is imperative that specific provision be made through the making of a Will.

There is a restriction on the discretion of the testator to dispose of their property as they wish.  Under the provisions of the Succession Act 1965 a surviving spouse is entitled as of right to one half of the estate where there are no children or one third of the Estate where the testator died leaving children.  Thus if a surviving spouse has been left a devise of a value which is less than their legal right share, they have a right to challenge the terms of the Will and insist upon the satisfaction of their particular share.  Children do not have a similar right but they can bring a court application under Section 117 of the Succession Act 1965 where they can prove that the testator "has failed in their moral duty to provide".

Wills should be reviewed in light of amendments in Taxation and Succession Legislation to ensure the most effective devolution of assets to the next generation with the minimisation of any tax exposure.  As you may be aware, under the terms of Finance Act 2000, Probate Tax has been abolished in respect of deaths occurring after the 1st December 2000.

Probate

Probate or Administration are the terms given to the process of distributing a persons estate after their death to their beneficiaries.  It is the executors (where there is a Will) or administrators (where there is no Will) who are responsible for protecting the assets, obtaining the Grant of Probate or Grant of Administration, clearance letters from the Revenue Commissioners and Social Welfare, and ultimately distributing the assets  to the persons entitled.  The beneficiaries will be named in the Will.  If there is no Will then the beneficiaries are established according to the table at the bottom of this page. 

Will Claims

Claims in relation to Wills can arise for a number of reasons including:-

• Allegations of undue influence ie. that the testator or person who made the will was coerced by somebody in to making the will in a certain way.
• Allegations of inadequate capacity to make a will ie. where evidence is available, medical or otherwise, that somebody did not have appropriate mental capacity to make a will.
• Where the will itself is not "under attack" but promissory estoppel arises ie. where someone claims that he/she was promised the property and relied on that promise, but then finds years later that a will does something different.

For confidential and sensitive, but practical advice, if you find yourself in these situations, please telephone us on 053-9233111 or email your preliminary enquiry to info@johnasinnottsolicitors.ie  You might also like to look at our sister website www.myinheritance.ie

Tax Thresholds (what you can receive tax-free)

Beneficiaries are categorized into groups depending on their relationship to the disponer or testator. The groups are linked to the Consumer Price Index (CPI) so they rise or fall annually with inflation.

The indexed Group Thresholds for 2009 and 2010 are set out in the table below:

What happens if you do not make a Will?

Everyone should make a will irrespective of their circumstances.  By making a will you get to decide who will benefit from your Estate (subject to certain restrictions) after your demise.  If you do not make a will then your Estate will be divided in accordance with the terms set out in the Succession Act as follows:

Note: If someones dies, but was pre-deceased by their spouse and their children, their estate goes to the grandchildren. When someone who dies without leaving a will or any living relatives, their estate/property will pass to the state.

Per Stirpes:  Per stirpes is a Latin term so we will explain it in plain English using an example.  George had three children, Bill, Bob & Barbara.  Bill died in 2002 leaving two children of his own.  George died intestate in 2008.  Who will take George's estate?  Bob & Barbara will take one third each and the remaining one third will be divided equally between Bill's children.  That's per stirpes!

Our Books:

Inheritance and Succession: The Complete Irish Guide  & Also "Make your Will" by our John G. Murphy and Jason Dunne is now available in bookshops or direct from Liberties Press info@libertiespress.com

For further information see www.myinheritance.ie.  

Contact: John G. Murphy/Jason Dunne

Email: info@johnasinnottsolicitors.ie  
Telephone: +353 53 9233111
Fax: +353 53 9233042