Welcome to Part Three of Making a Will with Gwen Bowen of Bowen & Co Solicitors. This is the third and final part of the series.
In this short series, I’ve put the key questions to Gwen, who has kindly taken the time out to answer them.
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, but I hope that they may be seen as resourceful in some sort of way!
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:
How long does it take for someone to contact you about a Will when their loved one as passed on?
What is a Grant of Probate?
What is the Solicitor’s Role when Executing the Will?
What happens if a Beneficiary cannot be found?
Do I need to worry about Inheritance Tax?
What happens when a relative dies and you can’t find the Will?
Can you help challenge the Will of someone who has died?
1. How long does it take for someone to contact you about a Will when their loved one as passed on?
This is a case of how long is a piece of string. Sometimes we are contacted when people are still in the hospital and, obviously, we cannot discuss the Will with anyone other than the testator until that person has passed on. Sometimes we are contacted after the month’s mind.
Some people contact us quite quickly as they are concerned about specific funeral arrangements – a desire to be cremated, buried etc.
As a point of interest, I would advise anyone wishing to direct their funeral arrangements in their Will to make these wishes known to next-of-kin and not simply leave it in the Will, as many people – particularly in the countryside – will leave it until after the month’s mind to contact the solicitor.
2. What is a Grant of Probate?
This is a document from the High Court confirming that the Will is valid. It is obtained by lodging a tax return, together with an Oath for the Executor confirming that this is the Last Will, a fee card, and the original Will, with the High Court, at which point they become documents of public record.
You should note that your Will becomes a document of public record and anyone can take up a Grant of Probate of any person once it is issued.
A Grant of Administration is where a person has died intestate – in other words, without having made a Will – and it gives power to the person or persons entitled (usually the next-of-kin) to deal with the Estate’s assets.
3. What is the Solicitor’s Role when Executing the Will?
The solicitor’s role when the Will is being made is to provide advice, such as tax advice, and also to advise about avoiding potential litigation and the costs attaching to same, as well as giving advice about how the Will should be made to avoid exposure to tax and/or to litigation.
A solicitor dealing with the Probate will correspond with all financial institutions and may assist in vesting property and dealing with unhappy family members. The solicitor has the first duty of care to the executors but a secondary duty to beneficiaries. If there is a conflict between the beneficiaries and executors the beneficiaries are entitled to seek their own legal advice.
4. What happens if a Beneficiary cannot be found?
If a beneficiary cannot be found, generally their share of the Estate can be lodged with the Accountant’s Office in the Four Court or, seven years after they pass away, a “Benjamin Order” can be applied for. This is an application to have the person declared legally dead and then their share of the Estate will go to their beneficiaries or, in some cases, if it can be shown that they died prior to the Testator’s death, will go to the Testator’s residuary beneficiaries. If the monies are small it can cost the Estate more to apply for the monies than are in the Estate and the monies are lodged in the Courts.
5. Do I need to worry about Inheritance Tax?
Yes, everyone needs to worry about inheritance tax. Depending on your threshold, inheritance tax is at present set at 33% of the benefit above that amount.
This would be particularly worrisome in the case of partners (i.e. nor married).
I seem to recall hearing a story on the Joe Duffy programme of a partner who realised that she was facing a significant tax bill. There are ways and means to deal with this. You can get an insurance policy to pay the tax if you are determined not to get married. There is no tax between spouses and, while this is not the romantic of reasons to get married, if you are together with someone and you have children together and/or a property together, a simple civil marriage ceremony would solve all issues in relation to tax in the event of the untimely death of one of the other parties.
You may wish to stick it to the man but Revenue will find you. I make no apologies for my stance on this!
6. What happens when a relative dies and you can’t find the Will?
If you are extracting a Grant of Administration Intestate, the death of the person is advertised in the Gazette or could sometimes be advertised in a local paper to see whether anyone holds the Will. Generally, the Solicitor will write to all the persons in the area where that person lived to check whether any part holds the Will.
There is no central Wills Register as this is perceived as something that people do not like.
7. Can you help challenge the Will of someone who has died?
It is important that you take good professional advice about challenging a Will as some people feel that Wills could simply be challenged on any grounds – but the grounds have to be very specific.
Costs are so high for Probate actions that you really need to take good advice about whether you are entitled to challenge a Will. When I say expensive I mean that I often advise people that the size of the Estate will not bear a full fight. Imagine you have a family with 5 children and an executor (or two) and a row breaks out. Every child is entitled to separate legal representation as is each executor. Your star witness as to “what they meant” is deceased. In some cases, the solicitor who drafted the will may be separately represented. Each legal team if the Estate is large and the question complex will have Counsel and senior counsel.
As stated, spouses have automatic rights and they can, of course, challenge a Will. The Executor is obliged to notify them of their entitlement and, if this has not been done, they do not lose their entitlement.
Children who feel badly treated have a right to apply to the courts for provision.
Wills challenged on the grounds of mental incapacity and duress have to be considered very carefully as there would need to be clear proofs in regard to this.
This isn’t to say that Wills are not set aside. They are and, in particular, homemade Wills are quite vulnerable when there are allegations of duress or incapacity.
Wills made with a Solicitor should generally have a full attendance note with them. Sometimes the problem can be with the Will and sometimes it can be with the advice given on the Will but, if you have a question about whether or not a Will is valid, that specific question needs to be put, together with the context of the Deceased’s family, their relationship with the person or persons challenging and their relationship with the person benefiting being all laid out for the Solicitor.
It is a very expensive procedure and professional advice needs to be obtained.
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.
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