The act of making a will is not something that most people like to think about. After all, it means coming to terms with our own mortality. End of life planning is a sensitive subject that people often prefer to not address, however, it is an important conversation to have and a conversation to begin sooner rather than later.
The importance of making a will can never be understated. It is one of the most important things you can do to protect your loved ones and ensure that your wishes are carried out after you pass away. If you have children, a will is an essential document. It protects your children and provides for them financially should you die. If you do not have children, a will allows you to decide exactly who will receive your possessions and estate after you die and can help to avoid any family disputes.
Many people put off making a will because they are not sure where to start or what they need to know before they begin the process. This blog post will answer some of the most commonly asked questions around making a will in Ireland so that you can be better informed and feel more confident about taking this important step.
Why Do I Need a Will?
A will is vital in ensuring that your wishes are carried out after you die and that through the appropriate distribution of your estate, your loved ones are taken care of financially. If you have young children, a will allows you to appoint a guardian for them should you die and make sure your money, belongings and assets are passed down accordingly when they come of age. This is also referred to as your “estate”. Your estate is everything you own including your house, car, savings, investments and personal belongings. It is not the assets you possess at the time of signing your will, but the assets you possess at the time of your passing. This is the estate that will be distributed as you wish through your will.
The benefits of a will do not end with your family’s financial security. There are numerous other benefits such as;
- You may use your will to describe your wishes in death, such as whether you want to be buried or cremated, and what type of ceremony you would like carried out in the event of your passing.
- If you are unmarried and have a partner, a will is a perfect way to guarantee that they will be covered under the law.
- You can use your will to support charities or causes that you care about by including them as beneficiaries in your will.
- A will can also help to avoid any family disputes that may arise after your death as it provides clear instructions on how you would like your estate to be divided. It will be one less thing for your family to worry about at a time when they are already suffering the loss of someone they cared deeply for.
- Making a will can provide you with great peace of mind, knowing that all your affairs are in order is a weight lifted off your shoulders. It allows you to live your life to the fullest, safe in the knowledge that should anything happen to you, those you love will be taken care of.
What Will Happen if I Don’t Make a Will?
If a person dies without having made a will in Ireland they are said to have died “intestate”, and their estate will be distributed according to the intestacy rules. Their estate will subsequently be distributed in accordance with the Succession Act 1965. The Succession Act of 1965 establishes the estate distribution in line with anybody who is designated as a deceased person’s surviving family, be it spouse, civil partner, or child.
For example if you are survived by a spouse or a civil partner they will inherit your estate, or if you are not survived by children or relations the State will inherit your estate. It’s possible though that these default lines of distribution aren’t the way you want your estate to be administered and without a will in place your wishes can be easily misconstrued.
How Do I Make a Will?
It is strongly advised to contact a solicitor to assist in the process of writing your will. A will is a legally binding document and as such there are certain rules and regulations that must be adhered to in order for it to be considered valid under the eyes of the law:
- You must be over 18 years of age
- You must be of sound mind
- The will must be in writing
- The will must be signed by you in the presence of two independent witnesses who are both present at the same time
- Additionally, both witnesses must sign the will in your presence and in the presence of each other.
- The signatures must be located at the end of the will
You can prepare your own will or you can instruct a solicitor to do it on your behalf. If you prepare your own will it is advisable to have it checked over by a solicitor to ensure that it meets the legal requirements and covers everything you want it to. We will cover the benefits of hiring a solicitor in greater detail shortly.
What Information Does My Solicitor Need to Prepare My Will?
At the very least, your will should cover the following:-
- Your personal details including your full name, address, date of birth and nationality
- The names, addresses and dates of birth of your spouse or civil partner and any children you have
- Who you would like to benefit from your will and how. You can leave specific items or sums of money to people (known as “specific bequests”) or you can leave everything to one person.
- Who you would like to appoint as executor(s) of your estate. Furthermore, you may want to appoint more than one person as joint executors. This means they will share the responsibility for dealing with your estate.
An executor is the person, chosen by the deceased, to deal with the administration of the will upon the deceased’s passing. It is the responsibility of the executor to take out “probate” on a will. The process of taking out probate involves the executor bringing the will to the Probate Office – the Irish body responsible for recognising the legality of a will – to ensure that the will is legal and binding and that all financial and tax matters regarding the will are in order. A will can only then come into effect once the Probate Office signs off on its validity. If a deceased has no will then the individual tasked with handling the person’s estate is known as an “administrator”.
It is important to bear in mind that there are statutory entitlements under the Succession Act in regards to whether or not you have children and what they are entitled to. Up until 1965, a person’s estate was theirs to do with as they pleased after their death, regardless of their spouse or children’s circumstances. However, under Section 117 of the Succession Act, a child can contest a will if they feel that they have not been adequately provided for.
If the court decides that the child has not been adequately provided for, they can make an order for “provision” to be made from the estate. This means that the court can award a lump sum of money or transfer property to the child out of the estate, or make some other order for the child’s benefit. These are exactly the type of necessary, legal provisions that an experienced solicitor can help navigate.
Can I Amend my Will?
You can and should review your will at least every five years or whenever a major life event occurs, such as getting married, having children, buying a property or receiving an inheritance. If you don’t review your will and something happens that isn’t covered by it, your estate may not be distributed according to your wishes.
Is it Risky to Forego a Solicitor When Making a Will?
While it is possible to make a will without using a solicitor, it is heavily advised against. This is because the legal requirements for a valid will are quite specific, and if even one of them is not met correctly, the will may be found to be invalid. If you use a solicitor to prepare your will, they will ensure that all the necessary requirements are fulfilled down to the finest detail.
What Can a Solicitor Do in Helping Me Make a Will?
A solicitor can help you with a will in a number of ways. First, they can ensure that your will meets all the legal requirements for it to be valid. Second, they can help you to decide what should go into your will. This includes deciding who should be the executor of your estate and who should benefit from your estate. Thirdly, they can help you to change your will if you need to. This could be because you have married, divorced, had children or bought a property since you made your last will. Finally, they can keep your will safe for you. This is important because if your will cannot be found when you die, it may be considered to have been destroyed and will therefore be invalid.
As you can see, there are many tricky legal provisions and potential pitfalls when it comes to making a will. This is why it is always best to seek the advice of a solicitor when doing so. There is much to be said for the peace of mind that comes with knowing your affairs are in order and being managed by someone with years of experience. If you have any further questions about making a will, or would like to make an appointment to have your will prepared, please contact us at Kevin O’Higgins Solicitors. We would be happy to help you.