When should I make a will? Do I need to discuss it with my family? What about inheritance tax?
These are just some of the questions that so many of us want to know, but yet many of us have been too afraid to ask.
In this short series, I’ve put the key questions to Gwen Bowen of Bowen & Co Solicitors, who has kindly taken the time out to answer them in full!
I’ve split this series into three parts, simply because there’s a wealth of information (over 4000 words in fact) that I’ve been given very generously by Gwen. It’s important to note that everyone’s situation is different, so not all of these questions may apply or be of interest to you.
If you’re looking for answers on specific questions, simply click one them in the list below and it will bring you to the answer. Otherwise, you can scroll through all the information:
What is a Will?
When should I make my Will?
What should I include in my Will?
Do I need a solicitor to make a Will?
What is required for my Will to be legally valid?
How long will it take for me to make a Will?
What happens if I die and I do not have a Will?
What is the difference between a living Will and a last Will?
Who should I choose to be my Executor/ Personal Representative and what is their role?
Can an Executor be a Beneficiary in a Will?
1. What is a Will?
A Will is a legal document that gives away the possessions of a person on death.
A Will speaks from death in that, when you have your Will made, you have not given away your possessions. Your Will does not come into effect until you pass away. You can change it as many times as you like.
2. When should I make my Will?
You should make your Will as soon as you are over the age of 18 and when you have “something to leave”. This might be a property or it might be the care of a child. Normally people make it when they buy a house.
In particular, anyone with young children should make a Will. Some people feel that they do not need to make a Will because they may be in negative equity or they may not hold property but many people would have insurance through work or mortgage protection insurance. This means that, particularly if you were to pass away at a young age, you would have significant assets in your name.
3. What should I include in my Will?
You should include in your Will whom you wish to be the Executor of it – i.e. the person who will deal with the solicitor and/or financial institutions to gather in the assets of your Estate and to distribute them in accordance to your wishes. You will obviously need to name beneficiaries and you will need to leave a residuary clause so that, if any of your beneficiaries pass away before you or any of your bequests fail, there will be a place for the asset to go.
4. Do I need a Solicitor to make a Will?
It is not necessary but absolutely advisable. You can buy “homemade” Wills. It should be pointed out, however, that an awful lot of problems involved in homemade Wills can end up the subject of litigation in court. In the course of my practice, I have seen some disasters including people losing out due to incorrect witnessing or lack of clarity or people adding writing to wills after originally making.
Probate litigation is particularly expensive and, if a Will has been poorly made by a Solicitor, at least you are covered by their professional indemnity insurance.
A Solicitor will also be able to give you good tax advice about making your Will and to point out to you where there could be problems in regard to same.
You may also need to have title to your property checked to troubleshoot any issues (For example, the property you are leaving may still be in the name of your late husband or parents).
You should be checking matters such as the title to your property when your Will is made, and a Solicitor will be able to do all this for you.
5. What is required for my Will to be legally valid?
A legally valid Will is made by a person who is over 18 and of sound mind.
They do not necessarily need to be physically able. They can have the Will made over and marked in their presence if it is clear that they are giving an indication that this is what they want to happen, but the Solicitor who would be making the Will would need to be very clear that the testator – the person who is making the Will – fully understands the Will that they are making.
The Will needs to be witnessed by two independent witnesses so that, if there is an issue with the Will, its execution or the capacity of the person making it, they can be called on to testify.
6. How long will it take for me to make a Will?
In general, many Wills are quite standard. There are types and formats that are used – for example for a couple with young children; for a widow/ widower with adult children; for a farmer etc. – it really depends on how much information needs to go into your Will and how you wish to divide your property.
You should allow for a minimum consultation with your Solicitor of 40 minutes to one hour in relation to making a Will. You will be asked to bring information with you and this may take a few days to gather.
7. What happens if I die and I do not have a Will?
If you die without a Will your property passes on intestacy, which is governed by the Succession Act 1965 and much depends on the marital status and family status of the Deceased.
If you are married and die intestate (i.e. without a Will), your property will go to your spouse but, if there are children, your property will go two-thirds to your spouse and one-third to your children.
This can cause complications as you can have minors involved in the title to a property.
It is worth noting that, in most modern situations, houses are held in joint names and pass by survivorship and so there should not be a problem. In particular, however, where farms, farmland or assets that the parties would have owned prior to marriage are involved, these can pass in a fractional way, making same difficult to deal with.
If you are not married and your parents survive you, your property goes back to your parents.
SINGLE WITH MINOR CHILDREN
If you are not married and you have children, your property passes to your children. This is a matter of huge concern as the modern family unit can take many different forms, and a situation could arise where, when someone passes away, all their property passes to their minor children, leaving their partner out in the cold. In the alternative, the Deceased may have been estranged from the mother of his children but she is the person who will administer the children’s Estate for them, as they will not be able to extract the Grant themselves but need to appoint their parent as “next friend” to do so.
It is almost impossible to advise generally on what would happen if someone dies intestate. That person’s family situation would need to be known. In reality, if you die intestate, you do not have any control over your Estate. That is why it is very important for everyone to make a Will and at least have their options explained to them by someone who is qualified to dispense such advice.
8. What is the difference between a living Will and a Last Will?
A living Will is a bit of a fiction– we do not really have living Wills here in Ireland. You can have advance-care directives kept with your medical records but they do not really have a legal standing.
You can set up an Enduring Power of Attorney, which is a document directing who will look after your affairs if you become incapable of doing so. However, it does not dispose of your property but merely appoints a manager to look after your property and your personal care in the event of your incapacity.
If you are looking medical directives along the lines of an advance-care directive, you should be speaking to your doctor, not your solicitor.
9. Who should I choose to be my Executor/ Personal Representative and what is their role?
Again, this depends on the family situation. In cases where I have a testator who is older with grown-up children, and who wants to benefit those children, it is always very efficient to appoint one or two of those children as Executors of the Will.
Some people get confused and think that you are not allowed to have an Executor who is a beneficiary of your Will. This is not the case: a beneficiary cannot witness your Will but they can be the Executor and, in most cases, this is the most appropriate way to ensure that the Estate is progressed in a timely fashion. Appointing someone outside of the family can cause delay.
I would always choose someone practical and organised, and who does not fight with other family members.
I always think that the appointment of two Executors and preferably younger executors in the case of older testators creates a good balance, which can be important – particularly if you are setting up trusts for minor beneficiaries.
10. Can an Executor be a Beneficiary in a Will?
See above – yes, they can. However, if a beneficiary or the spouse of a beneficiary witnesses a will the gift to them is void. It cannot happen. This is hugely important to know. Also, I would be wary of having any relation of a beneficiary witness a will as it can lead to suspicion.
About Gwen Bowen
I am the principal of Bowen & Co Solicitors. The firm was established in April 2005 in the town of Sixmilebridge, Co. Clare.
I attended UCC and obtained my professional qualification as a solicitor with the Law Society Blackhall Place in 1994. I undertook a Diploma in Trust and Estate Planning in April 2004 and have a huge interest in the area of Trust and Estate Planning and Probate disputes. I’m also qualified as a mediator through the Mediation Institute in 2007.
I have lectured at the Limerick Institute of Technology and, over the past 15 years, in the Law Society of Ireland and conference in the area of end-of-life issues and succession. I designed and delivered a Fetac Level 9 course on Agriculture and the Law in 2012.
I act for people nationwide and indeed worldwide in the area of succession. I think a practical and pragmatic approach works best.
Many thanks again to Gwen! Part two of Making a Will, will be coming out next week. You can subscribe to the blog, by entering your email address in the box below. If you like this piece, we would love if you shared it online and passed it on.