FREQUENTLY ASKED QUESTIONS
This FAQ on drafting wills should be read in conjunction with our other guides. It sets out here some core information that applies to all situations.
There are many good reasons why you should consider making a Will. The first being that a Will gives structure to your affairs after you die. It gives you an opportunity to direct what way your assets will fall or who will obtain your assets after you die and gives you an opportunity to shape and mould the division of your assets, where they pass and who obtains them after you die. So, it puts you into control of your affairs and it means that you have an opportunity to pick and choose who benefits out of your assets after you die.
It also gives you the opportunity to make financial provision for those who are close to you and to ensure that you can provide for those near and dear to you and to give them a degree of financial security and comfort in the future. It is also an opportunity to manage your affairs in a tax efficient manner so as to ensure that unnecessary taxes are not paid at your death.
The child or the other beneficiary who wishes to take on the farm will obtain the benefit of a generous tax relief known as agricultural relief whereby The same question could be asked as whether you need a mechanic to fix your car? There are plenty of amateur mechanics out there and plenty of us may wish to have a go at fixing our own car but will that provide the best solution in the long term? Wills are deceptively simple and there is a wide scope for mistakes and errors to be made which will render a Will invalid and of no effect. Even an small mistake can make a will problematic which could lead to years of litigation or conflict. In short, it would be very ill-advised to proceed in making a Will without the assistance of a solicitor and in particular a solicitor who has particular training in the area and regularly practices in the area.
Under Irish law there are core elements that make a valid Will. These are that it must be in writing, it must be made by somebody who is over 18 and of sound disposing mind. The Will must be signed in front of two witnesses and those two witnesses also must sign the Will in the presence of the person who makes the Will. Lastly, the Will cannot be made in circumstances where there is pressure brought to bear on somebody, where they are forced to make the Will against their wishes or forced to make gifts in the Will against their wishes.
Everybody in considering their Will needs to look at the following:
- You should at the start of your Will revoke previous Wills and state that this is your latest and most up to date Will.
- You need to appoint Executors of your estate. These are persons who will manage your affairs after you die and distribute your assets in accordance with the terms of your Will.
- You need to make specific reference to what you wish to do with all of your assets and you should divide out your Will between real property assets (houses, land, apartments etc.) and other assets (shares, bank accounts, life policies etc.).
- You need to include what is called a Universal Legatee Clause or a Residue Clause. You should have a clause in your Will which is a catch all clause which “mops up” any assets you have not specifically mentioned or that you may come into after you make your Will. This is normally the last clause of a Will and you need to decide what beneficiaries are going to receive the balance of your estate after you have made specific arrangements for individuals in your Will.
- Lastly, you need to ensure that your Will is signed by you and it is signed in front of two witnesses and those witnesses also sign your Will in your presence.
If you die with no Will you are deemed to have died “Intestate”. There are certain rules to which take effect and manage a person’s affairs in the event that they die without a Will. These are known as the rules on intestacy. If you are single and you die without a Will your estate passes to your nearest living relatives. If you are married with no children and you die without making a Will your entire estate passes to your surviving spouse. If you are married and you have children two thirds of your estate will pass to your surviving spouse and one third of your estate will pass to the children that survive you.
There are rules in placed sometimes called “forced heirship” laws which intervene to prevent you from disinheriting a spouse. This is sometimes called “writing a person out of your will”. You cannot “write your spouse” of your will. If you are married and have no children, you must leave at least 50% of your estate to your spouse. If you are married and have children, you must leave one third of your estate to your spouse. Your family home can be used as a contribution towards the rights of your spouse. The rights of your spouse are known as the “Legal Right Share.”
There is no strict rule on preventing you from leaving assets to your children. You do not have to provide for your children in your will. However, if you do not leave anything in your will to your child and that child has a particular financial requirements, then, that child may be in a position to mount a claim against your estate for your failure to provide for them. Each case must be looked at on its own merits.
This is a broad topic and specialist and tailored advice should always be obtained in each case. However, the Irish inheritance tax system is based on a beneficiary system. That is, there are no taxes paid by the estate but the taxes are paid by the persons who receive the gift or assets on the death of an individual. These are known as the beneficiaries of the estate. Beneficiaries can take a certain amount of assets from the estate tax-free and thereafter they will pay tax at a rate of 33%. That is, they will pay tax at 33% above a set threshold. Children can receive up to €335,000 tax-free from their parents and after that they will pay tax at 33%. Nieces and nephews or grandchildren can receive up to €32,500 from their relations tax-free and friends and strangers can receive up to €16,250 tax-free.
There are a wide range of exemptions and reliefs available as well and specific tax and legal advice should also be obtained when making your Will.
Your will is not effective until the day you die. Up to that date it has no legal effect. So you are free, as long as you have mental capacity, to make changes to your wills.