For many, the process of making a Will can seem like a daunting task, something that people may end up putting off for years. This is understandable as dealing with a Will is tantamount to recognising that you may not always be around to provide for your loved ones. This is a difficult but important conversation that you should have with yourself and, more crucially, your family. It is never too early to begin this conversation and set about getting your affairs in order so that your family are well looked after in your absence. It is vital to open this discussion up to your family so that you may gauge their expectations and needs for the future.
This is where the assistance of a legal professional is vital. They will be able to provide you with the relevant information and advice specific to your situation so that you can make informed decisions regarding your Will. It is important to remember that a Will does not have to be set in stone, it can be changed and adapted throughout your life as your circumstances change and shift with the times.
Beginning the conversation is the most difficult step but, once the process is in motion, it will soon become apparent that you cannot put a price on the peace of mind granted by having a solid plan in place. In this blog post, we’ll guide you through the process of making a Will and what to keep in mind when crafting a Will to suit your family’s needs.
Benefits of a Will
Recent research has shown that only 30% of people in Ireland have made a Will. Consequently, a very large number of people pass away without any Will in place. This can cause all sorts of legal difficulties for loved ones who are left behind. When somebody dies without a Will, they are said to have died intestate. As a result, the laws of intestacy determine how the deceased person’s estate is divided and can often lead to assets being distributed in a way that the deceased person would not have wanted. In Ireland the laws of intestacy are dictated by the Succession Act of 1965. Under this act, if a person dies without having made a Will, their estate shall be distributed in the following way:
– If the deceased was married or in a civil partnership at the time of their death, their spouse or civil partner will inherit the entire estate.
– If the deceased was not married or in a civil partnership but had children, their children will inherit the estate in equal shares.
– If the deceased had no spouse, civil partner or children, their parents would inherit the estate.
– If the deceased had no surviving close relatives, their brothers and sisters (or their descendants) will inherit the estate.
– If the deceased had no surviving close relatives, other relatives would inherit the estate.
– If the deceased had no close or distant relatives, their estate would go to the State.
Your vision for your family’s future may not align with the lines of distribution laid out by the Succession Act. It is clear from these laws around intestacy that having a Will in place gives you a much greater say in how your assets will be distributed when you die.
Upon your passing, your estate must enter a process known as “probate”. This is a legal process, handled by The Probate Office, that must be carried out before your assets can be handed over to your loved ones. Your estate must enter probate regardless of whether or not you have a Will in place, however, the probate process is made far more complicated and time-consuming where no Will was ever made.
When there is a Will in place, an application for a grant of probate must be made to ratify the Will and have the wishes of a Will carried out. In this instance, the executor of the Will will be entrusted with the responsibility of distributing the deceased’s estate in line with the wishes laid out in the Will. When a deceased person has passed away without a Will, an application for a grant of administration must be made. An “administrator” (generally a next of kin of the deceased), is put forward and becomes responsible for administering the distribution of the estate in accordance with the laws of intestacy.
In an intestacy situation the probate process can be more complex and time-consuming for your loved-ones. For example, a bond will be required for a sum equal to twice the gross assets of the estate. In a Will situation this is not required which, again, underscores the importance of having a Will in place.
Seeking out appropriate legal advice from an experienced solicitor when wishing to settle your affairs is crucial. Your solicitor will work with you to compile all the necessary information and documentation to help the whole process run as smoothly as possible.
Your Children and Your Will
Perhaps the most vital thing to consider when making a Will is how your children will be affected. If you die without a Will, your children may be left in the care of somebody you would not have chosen. This could be a grandparent, an aunt or uncle, or in extreme circumstances, the State.
When you write a Will, you can appoint legal guardians for your children. These are the people who will take care of your children if something happens to you and their other parent. You can also use your Will to leave money or property to your children. This can be done directly or through trusts. If you have young children, it is especially important to have a Will in place so that provision can be made for their maintenance and educational needs up to 18 years of age and thereafter. Any part of an estate that is to be left to a child as inheritance can not be claimed by that child until they reach the age of 18 – Succession Act, 1965. However, many parents opt in their Will to stipulate that their child or children should not benefit from inheritance until they are older – perhaps 23 or 25 years old.
Defining Your Family
Nowadays, the word ‘family’ is flexible and can hold a different meaning for a lot of people. You might have a traditional family set up with a spouse and children. Or you might be in a same-sex relationship or be in a civil partnership. You might also be single or divorced. You might have stepchildren, foster children, or children from previous relationships.
No matter what your family looks like, it is important to consider them when making your Will. This includes not just your immediate family but also any extended family members who you wish to include in your Will.
Keeping your family and loved ones in mind should be at the heart of every major life decision, especially when it comes to making your Will. Making a Will gives you the opportunity to ensure everybody who is important to you is considered and acknowledged upon your passing.
Here at Kevin O’Higgins Solicitors, we have decades of experience in succession and probate law and would be happy to work with you to create the perfect Will to suit your circumstances. If you would like to begin the process of writing a Will or have any further questions please contact us today. We’re more than happy to help.