The ULTIMATE GUIDE To Enduring Power Of Attorney In Ireland (2023)

The ULTIMATE GUIDE To Enduring Power Of Attorney In Ireland (2023)

by | Sep 25, 2023 | Enduring Power of Attorney

Introduction

Life is an unpredictable journey with twists and turns that can challenge our emotional, financial, and mental well-being. While you may not have a crystal ball to see into the future, you can certainly prepare for unforeseen circumstances. One crucial aspect of this preparation, especially for adults at any stage of life, is setting up an Enduring Power of Attorney.

The following guide aims to demystify the subject of Enduring Power of Attorney in Ireland, explaining its importance, legal provisions, and how to go about it (without any stress). Ready to safeguard your future?

What Is Enduring Power Of Attorney?

The purpose of an Enduring Power of Attorney (EPA), is to appoint a person (an Attorney), to manage your personal and/or financial affairs, in the event you become mentally incapacitated.

 

An EPA isn’t just a piece of paper; it’s a lifeline. It is a legal arrangement that ensures someone you trust implicitly can make crucial decisions on your behalf should you no longer have the mental capacity to do so yourself.

 

In simple terms, it’s a way to prepare for the worst, while hoping for the best.

Enduring Power Of Attorney vs. General Power of Attorney

Although this article focuses on the Enduring Power Of Attorney, understanding the different types of Powers of Attorney can help you decide which one suits your specific needs.

 

Powers of Attorney can either be specific, restricting the attorney to a narrow scope of tasks, or general, allowing them to do nearly everything you could do.

General Power of Attorney

A General Power of Attorney empowers someone to manage your property and/or affairs for a limited period. In other words, it’s a short-term delegation of authority.

 

Common use cases include going on an extended holiday or living abroad temporarily. Known also as an Ordinary Power of Attorney, this form is fully operational as soon as you sign it and doesn’t require registration.

Enduring Power of Attorney

If you need someone to act on your behalf because you’ve become mentally incapacitated—due to illness, an accident, or conditions like dementia—an Enduring Power of Attorney is the appropriate choice.

 

Unlike a General Power of Attorney, an EPA must be registered and comes into effect when you are no longer capable of managing your own affairs.

 

By understanding these distinctions, you can make a more informed choice tailored to your unique circumstances.

Without an EPA, the process becomes more complicated and stressful... | Kevin O'Higgins Solicitors

When Is Enduring Power Of Attorney Necessary?

Think of an Enduring Power of Attorney as a safety net for adults of all ages. It’s not merely an “end-of-life” plan but a practical tool for life’s unexpected challenges.

 

There are many ways in which someone can lose their decision-making capacity and an EPA might be necessary. In Ireland, a high number of instances occur due to dementia, Alzheimer and strokes. According to the Alzheimer Society of Ireland, “it is estimated that there are 55,000 people living with dementia” in Ireland, with figures projected to rise above 150,000 by 2045.

 

Whether you’re entering retirement, running a business, or have a chronic illness, an EPA assures that your affairs are in competent hands.

What Safeguards Prevent Abuse Of Power?

An Enduring Power of Attorney is an incredibly potent legal document, granting extensive decision-making authority to your chosen attorney(s).

 

Therefore, it’s paramount to only appoint individuals you deeply trust. But trust isn’t the only line of defence; the system includes several built-in safeguards to minimize the risk of abuse.

 

Here are the key protective measures:

 

  • Registration Requirement: Attorneys cannot exercise any authority unless the EPA is registered. During the registration process, specific parties have the legal right to object, adding a layer of scrutiny.

  • Notification of Intent to Register: Before registration can proceed, those designated to act as your attorney must notify at least two individuals specified in the EPA document. This gives these individuals the opportunity to raise objections if they have concerns.

  • Medical Certification: An EPA is only actionable with at least one doctor’s certificate confirming that you have become incapable of managing your own affairs. Moreover, when the EPA was initially drafted, a doctor would have also issued a certificate asserting that you, the donor, fully understood the implications of what you were doing, and were neither under undue influence nor defrauded.

  • Donor Restrictions: As a donor, you have the option to specify conditions, restrictions, or limitations on what your attorney(s) can and cannot do on your behalf.

 

By understanding and leveraging these safeguards, you can further secure your interests and well-being.

Can I Revoke An Enduring Power Of Attorney?

After your Enduring Power of Attorney has been registered, you have the option to either revoke or modify it by notifying the Decision Support Services (DSS). However, this is only possible if the DSS has not already accepted a notification indicating your loss of mental capacity.

 

It’s worth noting that EPAs created prior to April 26, 2023, are not required to be registered. Should you wish to cancel your EPA, you can either physically destroy the document or supersede it with a new one.

 

To formally revoke or amend your EPA, your application must include the following:

 

  • A declaration confirming your understanding of the consequences of your actions.

  • A statement from a solicitor or barrister, corroborating that you fully grasp the implications of your request and are not acting under external pressure.

  • If you’re making changes, a confirmation statement from the attorney acknowledging the amendments.

 

For EPAs generated before April 26, 2023, registration with the DSS is not obligatory, and revocation can only occur through the High Court.

Do I Need An Enduring Power Of Attorney?

Yes, an Enduring Power of Attorney isn’t just a document for potential worst-case scenarios; it’s a strategic component of a well-rounded life plan.

 

It gives you and your loved ones the peace of mind that you have a plan in place.

What If I Don't Have An Enduring Power Of Attorney?

Without an EPA, the process of assigning someone to make decisions for you becomes more complicated and stressful.

 

If you do not have an EPA 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. They can be both lengthy and expensive. It is much easier for everyone concerned if you have an EPA in place before any unfortunate situation arises.

How Do You Register An Enduring Power Of Attorney?

Registration isn’t just filling out a form and calling it a day; it’s a multi-step, legally intricate process that requires meticulous attention to detail.

 

The Decision Support Services (DSS) provides an online portal where individuals can initiate the process of setting up an EPA. While the online process offers some convenience, there are alternative methods available for those who find it challenging.

 

For example, you can authorise a legal representative to interact with the DSS on your behalf. This enables you to proceed through a paper-based manual process. Once you complete the EPA in paper form, it can be submitted to the DSS for registration.

 

Please note that you’ll need to verify your identity with the DSS as part of this process.

When Do You Register An Enduring Power Of Attorney?

Registration is a critical step that is triggered when you are losing or have lost mental capacity. It’s not just a procedural formality; it’s a legally mandated step to ensure that your attorney is properly empowered to act on your behalf.

The key factor is the level of trust and understanding between you and the individual or entity | Kevin O'Higgins Solicitors

Who Should Be Your Enduring Power Of Attorney?

The selection of your Enduring Power of Attorney is not a decision to take lightly. This person will hold significant influence over your life, especially during vulnerable moments.

 

Consider their reliability, understanding of your wishes, and their ability to make tough decisions under pressure.

Who Cannot Be Your Enduring Power Of Attorney?

Just as there are qualities to seek in an EPA, there are also legal restrictions on who can serve in this role. For example:

 

  • Minors: Individuals under the age of 18 are ineligible.

  • Bankruptcy Filers: Persons who are bankrupt cannot serve as your attorney.

  • Fraud Convicts: If someone has been convicted of fraud, they are disqualified.

  • Company Act Disqualifications: Individuals disqualified under the Companies Act are not eligible.

  • Nursing Home Owners: If you reside in a nursing home, the owner—be it an individual or a trust corporation—cannot be your Enduring Power of Attorney.

 

By knowing who can and cannot be your attorney, you can make a more informed, legally sound decision.

Does Your Enduring Power Of Attorney Have To Be Family?

There’s a common misconception that your EPA must be a close family member. While many people do opt for relatives—owing to established trust and familiarity—it’s not a legal requirement.

 

Friends, business associates, or professional fiduciary services can also serve as your EPA. The key factor is the level of trust and understanding between you and the individual or entity.

Nominating A 3rd Party In Your Enduring Power Of Attorney

In complex situations, or to add an additional layer of security, a third-party nomination can serve as a ‘check’ on your primary EPA. This entity can be given specific oversight duties, adding another level of due diligence.

What Are Enduring Power Of Attorney Notice Parties?

In addition to informing your chosen Attorneys about the responsibilities you’re entrusting to them, you’re also required to notify two other individuals. They are known as your ‘Notice Parties.’

 

The criteria for selecting your Notice Parties are as follows:

 

  • If you are married or in a civil partnership and are cohabiting with your spouse or civil partner who is not serving as your Attorney, they must be one of the Notice Parties.

  • Your child can also serve as a Notice Party.

  • If you neither have a spouse, a civil partner, nor a child, you are obligated to select two relatives to act as your Notice Parties.

 

It’s important to note that these Notice Parties will be informed once more if there comes a time when the EPA needs to be activated.

The 2015 Act introduces a supported decision-making framework in Ireland | Kevin O'Higgins Solicitors

What Irish Laws Govern Enduring Power Of Attorney?

Laws are not static; they evolve, and understanding the current legislative landscape is crucial. Several key pieces of legislation govern EPAs in Ireland.

Assisted Decision-Making (Capacity) Act 2015

Since 26 April 2023, the Assisted Decision-Making (Capacity) Act 2015 has been fully operational concerning Enduring Powers of Attorney. The 2015 Act overhauls the previous framework, introducing a new, supported decision-making framework in Ireland.

 

In short, it allows people to make legal agreements on how they can be supported to make decisions about their personal welfare, property and financial affairs. Applications for adults to become a Ward of Court can no longer be made.

Decision Support Services (DSS)

A noteworthy change is the establishment of a new Government Agency—the Decision Support Services (DSS). This agency has assumed the responsibilities previously held by the Wards of Court in the realm of EPAs.

 

The DSS provides an online portal where individuals can initiate the process of setting up an EPA. While the online process offers convenience, it may not be suitable for everyone due to its requirement for a certain level of IT competency.

 

If you find the online process challenging, there are alternative methods available. For instance, you can authorize a legal representative to interact with the DSS on your behalf. This enables you to proceed through a paper-based manual process.

 

Once you complete the EPA in paper form, it can be submitted to the DSS for registration. Please note that you’ll need to verify your identity with the DSS as part of this process.

Powers of Attorney Act 1996

The 1996 Powers of Attorney Act serves as the cornerstone legislation governing Powers of Attorney in Ireland.

 

This Act experienced a significant update with the enactment of the 2011 Civil Law (Miscellaneous Provisions) Act. This amending Act introduced a new provision stating that an Enduring Power of Attorney will be nullified if the donor decides to revoke it before losing mental capacity.

 

It’s also important to note that the 1996 Powers of Attorney Act lays down the essential criteria that must be fulfilled for an Enduring Power of Attorney to be legally valid. This sets the foundational guidelines you’ll need to meet when establishing your EPA.

The Role Of The High Court

It’s essential to understand that the High Court plays a supervisory role when it comes to Enduring Powers of Attorney. Once an EPA is registered, its cancellation can only be approved by the High Court. This body also has the authority to provide directives concerning the management and disposal of the Donor’s assets.

What Does "Losing Mental Capacity" Mean?

Mental capacity is a complex and nuanced subject. Having a mental illness or going through a period of being unwell does not necessarily mean you’ve lost your mental capacity to make decisions for yourself.

 

In the context of an EPA, losing mental capacity is formally determined by a healthcare provider, typically a general practitioner or doctor.

 

In Ireland, the criteria to establish loss of mental capacity include:

 

  • The ability to understand the information relevant to the decision in question

  • The capability to retain that information long enough to arrive at a decision

  • The aptitude to weigh that information during the decision-making process

  • The competence to communicate the decision clearly

 

If you are concerned about your ability or that of a loved one to make reasoned decisions, it is strongly recommended that you seek medical consultation. If the doctor diagnoses a loss of mental capacity, it may be time to consider establishing or activating an Enduring Power of Attorney.

When Should "Incapacity" Be Notified?

The moment incapacity is suspected or confirmed, it should be reported to activate the EPA. However, understand that ‘activation’ is not a simple switch; it is a process that involves legal verification and potential court involvement.

The Scope Of An Enduring Power Of Attorney's Power

Understanding the parameters of the EPA can be likened to knowing the rules of a game—you play better when you know the boundaries. Your Enduring Power of Attorney’s role is not a blanket authority but is governed by the specific powers you grant in the legal document.

What Is An Enduring Power Of Attorney Obligated To Do?

The scope of your Enduring Power of Attorney’s obligations depends on the level of decision-making authority you grant them. An EPA can extend to both your financial and personal life, so it’s critical to choose wisely.

Financial Decisions

Financial responsibilities generally encompass, but are not limited to:

 

  • Management of your bank accounts

  • Oversight of your savings accounts

  • Engagement in investment activities, including buying and selling

  • Payment of your ongoing bills

  • Real estate transactions, such as buying or selling property

Personal Decisions

On the personal front, responsibilities can include but are not restricted to:

 

  • Deciding where you should live

  • Determining whom you should live with

  • Managing social interactions, including who you should or should not see

  • Recommending or overseeing training or rehabilitation programs

  • Making decisions about your diet and dress

  • Granting or denying permission to inspect your personal papers

  • Handling matters related to housing, social welfare, and other benefits

 

It’s crucial to note that these duties need to align with your wishes and best interests, a key aspect to discuss with your attorney(s) when setting up your EPA.

Common Mistakes With Enduring Power Of Attorney

Even with the best of intentions, mistakes can happen. Here are some pitfalls to avoid:

 

  • Ambiguous Language: Lack of clarity can lead to disputes. Be as specific as possible.

  • Failure to Update: Life changes, and so should your EPA. Regular reviews are essential.

  • Not Discussing Duties: The appointed attorney should be aware of and comfortable with their roles and responsibilities.
Having an EPA can significantly ease the emotional and logistical burdens on your family | Kevin O'Higgins Solicitors

Who Monitors Enduring Power Of Attorneys?

The Decision Support Services (DSS) monitors the Enduring Power of Attorney.

How Do They Monitor An Enduring Power Of Attorneys?

If your attorney informs the DSS that you have lost your decision-making capacity, they must also submit a list of your assets. Each year, your attorney must submit a written report to the DSS setting out the costs, expenses and/or money paid. It’s crucial to maintain accounts and records of decisions.

 

If the DSS receive a complaint or wishes to check the activity of your attorney, they can send a visitor to speak with your attorney.

 

Here’s a quick breakdown of the various avenues that provide a safety net:

 

  • Court Oversight: Courts may require periodic reporting and can review any actions undertaken by the attorney.

  • Financial Audits: Depending on the scope of the EPA, external audits can be carried out to ensure financial propriety.

  • Third-Party Reports: Notice parties, social workers, or healthcare providers can serve as additional sets of eyes.

Frequently Asked Questions

As we’ve dived deep into the world of Enduring Power of Attorneys in Ireland, you likely have some questions. Here are some commonly asked queries and their answers:

What Is The Cost Of An Enduring Power Of Attorney?

In Ireland, the cost of an Enduring Power of Attorney can range from €500 to €1,000 in solicitor fees, with court registration costs added to the total. While costs can vary, it’s an investment in your peace of mind.

Can An Enduring Power Of Attorney Change A Will?

An Enduring Power of Attorney has no authority to change your will. Their jurisdiction ends with your life’s affairs and does not extend into posthumous matters.

Is An Enduring Power Of Attorney Valid After Death?

The Enduring Power of Attorney loses its validity the moment the donor passes away. From that point, the executor named in your will takes over.

Conclusion

Preparing for life’s uncertainties, especially as you approach your later years, is a topic many shy away from. However, the importance of this planning cannot be overstated. Having an Enduring Power of Attorney can significantly ease the emotional and logistical burdens on your family and loved ones should the unforeseeable occur.

If you find yourself with lingering questions or need expert assistance in setting up an Enduring Power of Attorney, we’re here to help. With years of specialised experience in elderly care law, Kevin O’Higgins Solicitors is equipped to guide you through this crucial life-planning phase. Contact us today for peace of mind for tomorrow.

The Ultimate Guide To Enduring Power Of Attorney In Ireland (2023) | Kevin O'Higgins Solicitors
Finding the Right Solicitor to Make Your Will

Finding the Right Solicitor to Make Your Will

by | Jun 23, 2022 | Making a Will

Finding the Right Solicitor to Make Your Will.

Making a will can be a complex legal process. There are many varying steps that require a level of detail that may lead to complications or misunderstandings. Therefore, finding the correct solicitor to develop your will can be a crucial choice – ensuring that your loved ones stay out of court, avoid dispute, and so on. Making a will is not required by law in Ireland, but it is an important step in ensuring that your estate is divided amongst your loved ones as you wish. In this blog, we will take a deep dive into the will-making process in Ireland and how matching the right solicitor with the right circumstances can prevent future headaches further down the road.

 

Before we begin this blog, it is important to have an understanding of some legal definitions when it comes to will-making/probate law, as they will crop up throughout.

Estate – Simply, the possessions that you own and/or intend to divide among your chosen beneficiaries.

Beneficiaries – The recipients of your estate. 

Testator – The person who writes the will i.e the person with the capacity to make the will.

Intestate – If you pass away without leaving a will, you are said to have died ”intestate”.

Witness – The people or persons chosen to oversee the signing of the will and guarantee its validity.

Executor – The person entrusted to carry out the wishes of the will maker upon his or her passing.

 

When it comes to making a will in Ireland, there are many things to consider. There are also a certain number of legal requirements that must be met. You must be over the age of 18 and of sound mind to make a will. The will must also be officially laid out in writing, with your confirmed signature and the signature of two witnesses, present at the will’s completion.

Before we begin this blog, it is important to have an understanding of some legal definitions when it comes to will-making/probate law, as they will crop up throughout.

Factors to consider when deciding to make a Will

If you die without having made a will, you are said to have died intestate and your estate will be distributed according to the rules of intestacy. This may not be in line with your wishes and can cause disharmony and disputes among your loved ones.

One very important thing to consider when drafting a will is who you would like to appoint as Executor/s of your will. The Executor is the person who will be responsible for administering your estate in accordance with the terms of your will. This can be a daunting task and you should consider appointing someone you trust implicitly to carry out your final wishes.

You must also be aware of the potential for inheritance tax in Ireland – known as Gift and Inheritance Tax (Capital Acquisition Tax). This is a tax that is payable on the value of your estate above a certain threshold. The rate of inheritance tax is currently 33% but there are some reliefs and exemptions which can reduce this liability. Your will can be drafted with the impact of inheritance tax in mind. This is why it is incredibly important to employ the expertise of a solicitor when drafting your will. A good probate solicitor will be able to navigate the legal requirements to pay inheritance tax to ensure all relevant taxes are paid, while also ensuring your loved ones receive the appropriate amount of your estate.

Another thing to note, your assets are not the only thing to be considered when you are drafting your will. If you are someone with young children or dependents, another very important consideration when making your will is guardianship – who will care for your children if the unthinkable happens. You can appoint a guardian in your will to ensure that your children are cared for in the event of your passing.

What Should be the Contents of My Will?

A defined format for a will does not exist. According to Irish Probate Law, the will does not have to follow any particular order, but it must include the name and address of the testator, a revocation of any previous will that may have been produced, a named and appointed ”executor” along with their address. It is also advisable to list any assets and debts that the will maker has at the time of writing the will. This can be extremely helpful for the Executor as it gives them a starting point when it comes to distributing the estate.

Once these basic requirements have been met, you are free to include anything else in your will that you see fit. It is important to note that any Will made in Ireland must be signed by the testator and two independent witnesses in the presence of each other. The will must also be dated.

Ensuring that your will is drafted with the aid of a solicitor is imperative to avoid the creation of “DIY wills”, something which the courts in Ireland have had to contend with. The main reason for the existence of DIY wills is that people often try to avoid the perceived hassle and expense of employing a probate solicitor. However, the time, energy and cost of dealing with probate disputes and litigation off the back of an improperly prepared will, will almost certainly outweigh any initial expense.

Changing your Will in the Event of a Change of Circumstances

Once a will has been written, it does not mean it has to be set in stone.  If there are any developments in your personal circumstances, it is important to review your will and make any necessary changes.

If you wish to implement these changes, the testator can add a separate document, referred to as a codicil.  A Codicil is simply an amendment to an existing will and must be signed and witnessed in the same way as the original will. It is advisable to have your will reviewed by a solicitor every few years, or sooner if there are any major changes in your life such as marriage, divorce, birth of children etc.

However, if the circumstances have changed drastically, it might be more efficient to revoke the will entirely. To do this, you must destroy, burn or tear the will and all copies of it. From here, you should work with your solicitor to draft a new will to reflect your new wishes and change in circumstances.

The Role of the Solicitor in Making a Will

While it is possible to write your own will, it is highly advisable for one to employ the services of a highly qualified probate solicitor to write it for you, such as what we have on offer here at Kevin O’Higgins Solicitors. The role of the solicitor in this process can be dictated by you. You may wish for the solicitor to simply draft the will in accordance with your wishes or you may want the solicitor to take a more active role and advise you on tax planning, asset protection, the creation of a trust or other matters relating to your estate.

It is also worth noting that only a solicitor can certify a will for safekeeping by the Probate Office. This is important as, if you were to die without a will or with an invalid will, your estate would be distributed in accordance with the rules of intestacy which may not be in line with your wishes.

There is no set cost in the will-writing process, as the amount you pay will be dictated by the role you want your solicitor to take and the complexity of your estate.

At Kevin O’Higgins solicitors, we understand that each person’s circumstances are unique and we tailor our service to suit your individual needs.

Matching my Circumstances with the Right Solicitor

When looking for a solicitor to assist in the will-making process, it is important that you find somebody who you are comfortable with and who you feel confident will act in your best interests. You should also ensure that the solicitor has the relevant expertise and experience in Irish will-writing and Probate Law.

Once you have found a solicitor that you feel meets these criteria, it is important to discuss your individual circumstances with them and ensure that they understand your wishes. This will allow them to provide you, confidentially, with the best possible service and advise you on the most efficient way to distribute your estate.

 

Conclusion

At Kevin O’Higgins Solicitors, we pride ourselves on providing a personal and professional service to each of our clients. We take the time to get to know you and your circumstances so that we can provide you with the best possible advice.

If you would like more information on will-writing or any other probate law matters, please do not hesitate to contact Kevin O’Higgins Solicitors today.

Making a Will in Ireland – Your Questions Answered

Making a Will in Ireland – Your Questions Answered

by | May 23, 2022 | Making a Will

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.