MAKING YOUR WILL
WHY DO I NEED A WILL? Did you know that over 60% of people in Ireland do not have a Will? It is never too early to make a will. A Will is a document that sets out how you wish your assets to be distributed on your death and who will look after distributing your assets. The best way to make sure your assets are distributed in accordance with your wishes is to make a Will. If you die without a Will, your assets will then be distributed according to law, rather than according to your wishes. The law will decide who will responsible for administering your estate. The law is not ﬂexible. Having a professional draft your Will is the best way to ensure that the people you wish to beneﬁt are looked after in your Will.
WHY US? We are a specialist legal practice with particular expertise and experience in all aspects of Wills and Estate Planning. Our aim is to help you make the best Will for you. The information provided in this guide is to assist you in making your Will but it is no substitute for speciﬁc advice that we would provide for you in respect of your own individual circumstances.
WHEN SHOULD YOU CHANGE OR UPDATE YOUR WILL? A Will of course will need to be changed as your life changes and as your family circumstances change. Do not make the mistake of putting the matter on the long ﬁnger as it is important that your Will is updated to reﬂect the changes you wish to make. If you don’t make the changes, your current Will (without changes) will be your last Will and testament. Reasons to change your Will could include: ● marriage, remarriage , divorce or separation ● cohabiting or entering into a civil partnership ● the birth of child or death in your family ● change in your ﬁnancial circumstances ● changes in tax law
WHO SHOULD DRAFT MY WILL? Making your own Will may seem like a cost eﬀective option but it’s very easy to make technical mistakes or omissions. These mistakes could invalidate your Will or lead to costly disputes in the future. We would always recommend that you consult a solicitor who will ensure that all the legal formalities for making your Will are followed. It is not an expensive process and you will ﬁnd that you will have great peace of mind knowing that your Will is drafted correctly and that your loved ones have been provided for.
WHO DO YOU WISH TO BENEFIT IN YOUR WILL This can be an easy question to answer for some people but it can also be a very diﬃcult question as the people that you may wish to beneﬁt can change over time. It is important to note that a will should be updated on a regular basis. Tip: It can be helpful to set out a list of who you wish to leave some or all of your assets to and you should bring this list with you when we meet to discuss your Will.
WHO DO I CHOOSE AS MY EXECUTORS? Who is the best person/persons to carry out the terms of your will? The person charged with this role is known as your executor(s). While you can appoint anyone to be the executor of your will, it is useful to appoint someone who is aware of your aﬀairs and who you know will be capable of administering your estate. Your executor does not need any special qualiﬁcations, but you should choose someone reliable. You can appoint one or more executors, and you can appoint an alternative executor in case your primary executor is unable or unwilling to act after your death. Appointing an executor in a Will can be done by simply naming him/her in your Will. If your chosen executor requires professional assistance, he or she can engage a solicitor or other professionals when the time comes.
WHEN DO I NEED TO APPOINT GUARDIANS IN MY WILL? It is important if you are the parent of a child under the age of 18 that you make a will appointing guardians to act on your behalf. I would recommend that you would discuss this with the proposed guardians. It is important to know that while in general people choose family members it is not a requirement. The choice is a decision that you make and which of course can be changed at any stage as the circumstance of your children and the guardians change. Note: If you do not appoint guardians under your will, the court will appoint guardians on your behalf and the appointed guardian may not have been the person who you would have chosen. In the case of martial children the mother and father of an infant are guardians of the infant jointly. Even in the case of divorce the guardianship rights are not aﬀected. The situation is very diﬀerent in relation to a non-martial child. The natural mother is automatically deemed to be guardian but the same rule does not apply to the natural father.
WHAT KIND OF GIFTS CAN I GIVE? There are diﬀerent kinds of gifts you can make in your Will: ● Pecuniary gifts – a ﬁxed sum of money to a person or a group of person .e.g. “€5,000 to each of my grandchildren alive at the date of my death”. ● Speciﬁc gifts – a particular named item such as jewellery or paintings. You should make sure that the item is accurately described. If the item is sold or disposed of you should amend your Will as it could result in disappointment for the person named in the will. ● Residuary gifts – a gift of all or a share of the remainder of your estate, after pecuniary gifts, speciﬁc gifts, and debts have been paid. It is an important clause in a Will. Without a residuary clause, any property which is not speciﬁcally referred to in the Will would pass according to the Rules of Intestacy.
LEAVING A GIFT TO CHARITY IN YOUR WILL It is important to ensure that the charity you wish to beneﬁt in your Will is suﬃciently identiﬁed in your Will. The correct name and address of the charity should be obtained.
Diﬃculties arise where a charity is incorrectly described in a will or where the charity is no longer in existence. A failure to correctly identity a charity in your Will can lead to the gift not being able to be given to the charity. In such circumstances, the gift may fall into the residuary of your estate and the charity will receive nothing. From a tax point of view if the charity is registered as a charity with the Revenue Commissioners, any gift left to them under your Will will be given to the charity tax free. If the charity is not registered with the Revenue Commissioners then tax is payable by the charity.
WHAT IS INHERITANCE TAX? Inheritance Tax is a tax which can arise when a person receives an inheritance in a Will or on intestacy. The person (known as the beneﬁciary) who receives the inheritance is responsible for paying the tax. The inheritance is taxed if its value exceeds a particular threshold. Diﬀerent tax thresholds apply depending on the relationship between the deceased person and the beneﬁciary. There are also a number of reliefs from inheritance tax available. Inheritance tax is also known as Capital Acquisition Tax (CAT) Reliefs include: ● Business Relief ● Agricultural Relief ● Dwelling House Relief ● Favourite Nephew/Niece relief ● Relief for a Minor Child of a Deceased Child ● Heritage Property & Heritage Property of Companies For more information about inheritance tax and inheritance tax reliefs visit www.bmsolicitors.ie/wills/probate/inheritance-tax NOTE: The threshold for Inheritance Tax and the rate of tax changes so you’ll need to keep up-to-date with these changes.
WHERE IS MY WILL STORED? Your solicitor will keep your Will in a ﬁre proof safe as part of their service. There may be a charge for storing your Will and you should check this. Browne & Murphy Solicitors do not charge a fee for storing your Will.
INSTRUCTIONS FOR MY WILL (This should be completed and given to your solicitor when you meet to discuss your will) PERSONAL DETAILS Name
Date of Birth
Address Marital Status Spouse/Partners Name Occupation Children’s Names
EXECUTORS AND TRUSTEES Name Address Name Address
GUARDIANS OF INFANT CHILDREN (if applicable where a child is under the age of 18) DETAILS OF ASSETS Property Details Location of Title Deeds Bank/Building Society Accounts An Post/Credit Unions Accounts Shareholding and location of Share Certiﬁcates Life Insurance Details Pensions Details Foreign Assets Life Insurance Policies Other Assets
Specify any assets (including property, bank accounts) that you hold jointly
Have any of your beneﬁciaries received a previous gift from you
CHECK LIST Use the check list below to help you prepare for your meeting with us about drafting your Will or updating your Will. ● Have your passport/ driving licence and a copy of an up to date utility bill to conﬁrm your identity. Solicitors are required to keep copies of these documents for all new clients. ● Make a list of all your assets. Assets including all property held in your name or held in the joint names of you and another person, land, bank accounts, savings, shares, insurance policies, pensions, paintings etc. ● Who do I wish to beneﬁt in my Will. It can be helpful to set out a list of who you wish to leave some or all of your assets to. ● Who are the best person/persons to carry out the terms of your will and will be appointed Executor(s) of your Will. ● If you have made a previous Will have a copy of any previous Will that you may have ● Consider whether you need to appoint guardians and trustees in your Will? ● What queries do I have regarding my Will and inheritance tax.