Making your Will is a hugely personal matter and professional advice in relation to same is invaluable. Often, Will-making is seen as something that anyone can do but, with the right advice, you can obtain an objective perspective, and familial rows and unnecessary taxation can be avoided.
We will strive to make sure that your wishes are achievable and offer you advice where we see pitfalls.
Why Make A Will
The reasons for making a Will may be best explored in the context of what happens if you do not make a Will.
If you die intestate (i.e. without a Will) your Estate is divided according to intestacy law as follows:
- If you are married with no children, all your Estate goes to your spouse
- If you are married with children, two-thirds of your Estate goes to your spouse with the remaining third divided equally between your children.
- If you are single, your Estate goes to your parents. If your parents have predeceased you, your Estate is divided equally between your siblings.
- If you are unmarried but cohabit with your partner, your partner has no automatic right to any share of your Estate. Items jointly owned by cohabitants will automatically pass through to the surviving cohabitant and not form part of the Deceased’s Estate. Other assets will be treated as if you are a single person i.e. they will pass to your parents (or your siblings if your parents have predeceased you). The surviving partner may qualify for Dwelling House Tax Exemption but has to meet certain criteria to do so. If not, Capital Acquisitions Tax may be payable. Cohabiting partners pay tax at 33% on gifts or inheritances over €16,250.00.
Now that we have set out the implications of not making a Will, we set out in brief the advantages of making your Will:
- You have a say over who inherits all or part of your Estate.
- You can appoint Guardians and Trustees for any minor children
- You can arrange for a vulnerable person in your life to be protected – i.e. a child with learning disabilities, an adult child with addiction difficulties etc.
- You can carry out succession planning with a view to minimising exposure to inheritance tax for your beneficiaries. Some people use their Wills to set up trust funds for grandchildren etc. so that parents can use these funds to defray third-level education costs and other costs that may arise during a child’s advancement towards independence.
- The Testator’s wishes in regard to companies or farms owned solely or jointly by the Testator can be set out, and the Testator can avail of advices in reference.
Disputes with Wills
Unfortunately, there can be fall-out amongst family members in regard to how they perceive they have been looked after in the provisions of a Will. Disputes can also arise when no Will is made.
Family members may feel that a Testator (the person who made the Will) was not capable of making the Will when it was made. These cases are become rarer but they still arise from time to time.
Particularly in farming families, issues can arise in regard to expectation, promises made and disappointments suffered. In circumstances where none of the children want to take over the farm, the traditional model of the farming family no longer fits the picture and, in those cases, families may need to have long discussions around what people’s expectations are.
Succession planning can often involve a whole family having a discussion about how a farm or a business might best benefit the goal of keeping the enterprise going and meeting the needs of family members.
Incapacitated children and their needs
Sometimes a trust fund needs to be set up to protect the long-term needs of people with intellectual or other disabilities.
Younger Children
In the case of a young family, it is necessary for a structure to be set up to direct whom you wish to be guardians of your children and how this would be dealt with, to include a Wills trust ensuring that monies are protected for younger children until they are in a position in adulthood to make their own decisions and are safely on the path to their future.
Blended Families
In cases where families are blended (each party may have their own children before the relationship) it is hugely important to ensure your own family structure can benefit without exposure to tax consequences or inadvertent exclusion of offspring.
