Wills and their Effect on Loved Ones: Making your Will with your family in mind

Wills and their Effect on Loved Ones: Making your Will with your family in mind

by | Sep 19, 2022 | Making a Will

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.

Probate

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.

Enduring Power of Attorney: Your Questions Answered

Enduring Power of Attorney: Your Questions Answered

by | Aug 12, 2022 | Enduring Power of Attorney

End of life planning is never easy and can often be a difficult thing to discuss with your loved ones. However, if you are an elderly person, or have elderly parents, then being familiar with the concepts and laws surrounding end of life planning, especially Enduring Power of Attorneys (often referred to as EPAs) can be very important. There are numerous reasons why understanding the law surrounding Enduring Power of Attorneys is imperative to you and your family’s peace of mind, especially if you are in a position where one may likely be needed. The topic of EPA, and end of life planning generally, can be a difficult topic to think about, but it is important to have an Enduring Power of Attorney in place in case something happens and you can’t make decisions for yourself. As experts in the areas of elderly care law, we at Kevin O’Higgins Solicitors thought it best to put together a blog post to answer some of the most common questions people have regarding EPAs. We hope this information will help you make the best decision for you and your loved ones!

So What is an Enduring Power of Attorney?

In Ireland, an Enduring Power of Attorney is a legal document that allows you (the “donor”) to appoint someone else, generally a close family member, (the “attorney”) to make decisions on your behalf in the event that you lose the ability to do so for yourself in the future. This could be due to incapacity, mental illness or physical injury. Your attorney will have the power to make decisions over your financial affairs, your personal welfare, or both. The attorney must be over 18 years of age and must be someone you trust implicitly to make decisions in your best interests.

It is important to note that an Enduring Power of Attorney only comes into effect if, and when, you lose mental capacity. This means that the attorney can only make decisions on your behalf if a doctor has certified in writing that you are no longer mentally capable of making those decisions for yourself. This is to protect your interests and to ensure that the attorney only acts on your behalf when it is absolutely necessary.

Enduring Power of Attorney can be a very useful tool, especially for elderly people or those with chronic illnesses, as it gives peace of mind knowing that there is someone you trust who can make decisions on your behalf. As a result, it is very important to think long and hard about who you appoint as your attorney. This person should be someone you know very well and trust completely to make the best decisions for you, even if those decisions may not always be easy ones.

When is an Enduring Power of Attorney Necessary?

One of the most important considerations when deciding if an Enduring Power of Attorney is necessary or not is your family. How would your family cope if you were to lose capacity and were unable to make decisions for yourself? With exponential increases in medical care and life expectancy, it is important to have arrangements in place that anticipate the unthinkable.

As you are well aware, there are many ways in which someone can lose their decision making capacity and an Enduring Power of Attorney might be necessary. In Ireland, a terribly high number of instances occur due to dementia, Alzheimer and strokes. According to the Alzheimer Society of Ireland: “In Ireland, it is estimated that there are 55,000 people living with dementia. This figure is expected to rise to 150,000 by 2045.”

With such high numbers, and with medical advancements meaning that more and more people are surviving conditions that would have previously been fatal, the importance of end of life planning has never been more pressing. Situations such as these can be incredibly difficult for families to deal with, as it can be hard to know when the time is right to start making decisions on behalf of a loved one. Enduring Power of Attorney can take some of the pressure off by ensuring that there is someone in place who can make those decisions when the time comes. Having an EPA in place also acts to bypass a lot of potential disagreements and issues that could arise in your family regarding end of life care if you lose decision making capacity.

What Irish Laws Govern Enduring Power of Attorneys?

The Powers of Attorney Act, 1996 is the primary legislation governing Powers of Attorney in Ireland. This Act was amended by the Civil Law (Miscellaneous Provisions) Act, 2011. The 2011 Act inserted a new section, which provides that an Enduring Power of Attorney shall cease to have effect if the donor revokes it before losing mental capacity.

The Powers of Attorney Act, 1996 sets out the requirements which must be met for a valid Enduring Power of Attorney.

What if I Don’t Have an Enduring Power of Attorney in Place and Lose Mental Capacity?

If you do not have an Enduring Power of Attorney in place and lose mental capacity, your family will have to apply to the Court of Protection for a wardship order. Applications for wardship are a court based process and can be lengthy and expensive. It is much easier for everyone concerned if you have an Enduring Power of Attorney in place before such an unfortunate situation arises.

How Enduring is an Enduring Power of Attorney?

Under the Powers of Attorney Act 1996, an EPA only comes into effect if the donor loses mental capacity. In order for an EPA to come into effect, an application must be made to the High Court to have the Enduring Power of Attorney registered. You must also notify the Registrar of Wards of Court in writing of the intended registration. Once an EPA has been registered, it cannot be revoked unless a revocation is ratified and confirmed by the High Court.

Another thing to note is that an Enduring Power of Attorney ceases upon the death of the donor. Other situations where an EPA will cease to have effect is if the appointed attorney is a spouse of the donor and the marriage/civil partnership is ended by divorce, annulment, dissolution or judicial separation.

While it’s not something people like to think about, end of life planning and planning for the unthinkable is very important. Ensuring that you are prepared for what life may throw your way should be paramount, especially as you head towards the later chapters of your life. By having an Enduring Power of Attorney in place, can relieve your family and loved ones of some of the stresses and heartaches surrounding your end of life well-being and affairs. Here at Kevin O’Higgins Solicitors, we have years of experience in elderly care law and we would be delighted to answer any further questions you may have, or aid you in creating an Enduring Power of Attorney. Contact us today.