Welcome to Part Two of Making a Will with Gwen Bowen of Bowen & Co Solicitors
In this short series, I’ve put the key questions to Gwen, who has kindly taken the time out to answer them in full!
I’ve split this Making a Will series into three parts. Part One is here. 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 on making a will, 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 the impact of marriage/divorce on a Will?
What if you are partners with someone but not married to them or in a civil partnership with them?
Can you leave your Assets to anyone?
Can children under 18 years of age inherit?
Should you discuss your Will with your family?
When should I update my Will?
Do I need to pay again if I decide to change my Will?
What happens to my Will if the Solicitor dies?
What happens to my Will if I fall out with my Solicitor and I want to change?
Where should I store my Will? Would you recommend making a digital copy?
1. What is the impact of marriage/divorce on a Will?
Marriage makes a pre-existing Will void, so you need to change your Will if you marry or in the alternative make your will in contemplation of marriage (and this needs to be noted). There is no such thing as a civil partnership anymore: you either marry or do not. However, if you entered into a civil partnership in the period when these were in effect, and you did not make your Will afterwards, you should review your Will.
Divorce does not void a Will nor does a dissolution of a civil partnership but obviously, again, you should review your Will in either set of circumstances.
2. What if you are partners with someone but not married to them or in a civil partnership with them?
In these circumstances, you need to structure your Will carefully.
The one thing to understand about cohabitees is that for tax purposes, they are regarded as strangers-in-blood to each other.
As strangers-in-blood, they are only entitled to a Group C threshold for inheritance purposes, which is €15,075.00 at present, which means that tax can be a problem.
If you are in a partnership with someone and you have minor children together, there can be huge difficulties with the administration of the Estate, and the surviving partner can be left particularly vulnerable.
The relationship is through the children. Again the best advice I can give is to contact a solicitor with expertise in the area and look at your options and how to protect each other and your children if any.
We also have numerous blended families and if you had to invest a bit of time and money even to have the knowledge of scenarios which might occur it would be time and money well spent.
3. Can you leave your Assets to anyone?
Yes, you can. If, however, it is perceived that a person – perhaps someone older and vulnerable – may have been under undue influence or under duress when they left assets to a beneficiary, this can be questioned.
If you are married you have legal obligations to your spouse. If you have no children, your spouse is entitled to a half-share of your Estate. If you have children they are entitled to a third of your Estate, and this cannot be avoided unless it has been agreed between the parties that the spouse will waive their succession rights, which can be common enough in second marriage, where both parties have assets entering into the relationship, and both parties also have children or other beneficiaries.
4. Can children under 18 years of age inherit?
Yes, they can but the property will be held in trust for them until they reach the age of 18. It is much more user-friendly to set up a trust for the child under the age of 18 and it can also be a way to save on tax.
For example, if you are an unmarried testator with no children and want to leave all your property to your only sibling, they are liable for inheritance tax once they have received the sum of €30,150.00 (at present and subject to change). Your estate is worth €250,000.00 they will pay €70,000.00 plus in tax. But if they had three children you can remove €90,000.00 from the tax bracket and reduce tax by €30,000.00.
By gift-splitting and leaving monies in trust to the children of your siblings, this will broaden the benefit. This is a very simple way of benefiting your siblings, especially if the monies in trust for your nephews and nieces are to be used for their education, advancement and benefit in life, as this will take a financial burden off your siblings.
5. Should you discuss your Will with your family?
This depends… I am favour of discussing your Will with your family, particularly where there are farm assets and a succession plan needs to be put in place where one family member benefits to a greater extent than other family members. However, you are not obliged to discuss your Will with your family.
If you are unmarried and without children, and you wish to leave your property in a particular way, it may be better not to discuss your Will with your family, in case there is a row or in case people commit to the idea that they will have an inheritance.
You might make your Will and leave your assets in a certain way but relationships can change and so, in 10 years’ time, you might make your Will in a different way. This means that if you have discussed the first Will with the family, people might have particular expectations. Maybe tell them you are leaving it all to charity… see who sticks around and give it to them!
But certainly, let your family know you have a Will and where it is.
6. When should I update my Will?
I advise people to update their Wills every five years or on the occurrence of any major family event such as the birth of a child, death of a parent, death of a spouse, marriage, remarriage or even if you materially change your assets.
7. Do I need to pay again if I decide to change my Will?
Yes, you do. Sometimes if the changes are minor and if it is your family solicitor you will not be charged or, if you are, you might be charged a nominal amount to change the Will, particularly as, nowadays, most Wills are saved in soft copy and it is a matter of simply accessing them and changing around the terms.
It is not a good idea to change your Will very frequently, however, as particularly with older people, this can be used as an indicator of incapacity, duress or undue influence.
8. What happens to my Will if the Solicitor dies?
If the Solicitor dies, generally their practice will still hold the Will. However, if the Solicitor retires or dies, or their practice amalgamates, the Law Society of Ireland will be able to tell you who has taken over their practice and where your Will is.
If a Solicitor dies and their practice is taken over, the Will remains in the Will safe of that practice.
9. What happens to my Will if I fall out with my Solicitor and I want to change?
You simply choose another solicitor and make a new Will. Every time that we make a Will it voids all previous Wills. You do not even need to tell your old solicitor when you make a will with someone else but it would be recommended that you let your Executors know where your Will is.
Generally, when I make a Will for a client, I give them a copy of it if they request one, but I will also give them business cards and ask them to give these to their Executors to contact me in the event of something happening to them.
10. Where should I store my Will? Would you recommend making a digital copy?
Your Will should be stored in the Solicitor’s office or in a fireproof safe. I would not recommend storing the document at home. A copy of it could certainly be stored but, if there was a fire, your Will could be destroyed and deemed to be revoked. In such a case, you could be viewed to die intestate.
If the Will is kept amongst papers at home, it can be discarded by mistake when houses are being cleared out. At least if you have a record of where the Will was made, the Solicitor’s office will generally have a record if the Will is removed from the office and we would generally have digital copies of all Wills in our Will Safe.
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 for kickstarting the conversation on making a will! Part three of Making a Will, will be coming out next week. You can read Part One here. 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.