Most of us are somewhat uncomfortable when contemplating our own mortality, and such discomfort can prevent some people from making a will. However, many people find that making a will brings a sense of comfort and security in knowing that their wishes will be followed after they are gone. Wills are not only for the elderly; it is recommended that everyone makes a will, particularly on becoming a parent, or upon acquiring an asset such as a first home.
A will means that you (and not the state) control what happens to your assets after your death. It allows you to decide who should care for your children, should you die before they reach adulthood. A will allows you to leave gifts to your friends, or to leave money for masses or to charity. If you die without a will, your estate will be divided amongst your family without any flexibility, according to the rules of intestacy.
If you have children, a will allows you to divide your estate according to their requirements and circumstances. This can be important where one child has special needs or difficult circumstances. A will also allows you to create a trust to look after the future needs of a loved one, if a lump sum may be inappropriate.
If you have non-traditional family circumstances it is very important to make a will in order to ensure your loved ones are protected.
Inheritance tax or CAT, can be quite high, but making a will allows you some control over the tax implications on the people who will inherit your estate. Firstly, your spouse or civil partner will not have to pay inheritance tax. Other categories of person may inherit a certain amount without paying tax, depending on their relationship to you. In certain circumstances, there may be tax reliefs available to a loved one who lives with you in your home. And there may be tax reliefs available if a business or farm forms part of your estate. The rules relating to these reliefs can be tricky so it is advisable to talk to your solicitor if you think that a tax relief may be applicable to your circumstances. It is also important to remember that the rules pertaining to the tax reliefs may vary with each budget, so you should review your will regularly if you intend for a relief to be effective.
There are statutory formalities that must be complied with in making a will. It must be made in writing, by an adult of sound mind, and must be signed at the foot in the presence of two witnesses, who must attest the signature by signing their own names on the document. Those witnesses or their spouses cannot benefit from the will.
There are advisable provisions to include such as a clause revoking all previous wills, and an attestation clause. It also advisable to describe beneficiaries and property in sufficient detail, and to appoint appropriate executors, guardians and trustees. A residuary clause is important to ensure you avoid a partial intestacy in circumstances where you gain an asset after making the will or a beneficiary predeceases you.
There are some restrictions involved in how you may dispose of your assets. In many cases, jointly held property will pass to the surviving joint owner, rather than by way of your will. Life assurance policies may have a nominated beneficiary, which will not be overridden by your will. You cannot use a will to avoid your just debts. If you are married without children, your spouse is entitled to one half of your estate, with a right to appropriate the family home. If you are married with children, your spouse is entitled to one third of your estate.
Occasionally, a will is challenged in Court. If you have made a promise to any person as to what they will inherit, and they have relied on that promise, any contrary provision in your will may be estopped. A child of any age may seek to have the provisions of a will altered by showing that a testator has ‘failed in their moral duty to make proper provision’ for that child, whether by will or otherwise. Dispositions made within 3 years of death may be challenged if done for the purpose of disinheriting a spouse or children. Cohabitants may also have a claim over an estate in certain circumstances.
You should review your will every few years, and in particular, after disposing of or acquiring a large asset, or on any change in family circumstance such as marriage (which automatically revokes a will), separation, the death of a spouse, or the birth or coming of age of children.
Once your will is made or reviewed, you will have the peace of mind of knowing that your wishes will be followed. Your will does not take effect until you die, so you do not part with any property or rights immediately, and you are free to change your will at any time you choose. Making a will can also be an act of kindness that can make life easier for your loved ones after your death.
The above is intended for information purposes only, and is not intended to be relied upon as legal advice. Please contact us on 01 -6763257 for advice specific to your needs. We at Fitzsimons Redmond LLP are happy to guide you though the process of making or reviewing your will.
Lisa Quinn O’Flaherty
