Making a will
What is a will?
A will is a legal document setting out how you would like your assets to be dealt with on your death. In order for it to be valid it must be properly signed and witnessed.
Why should you make a will?
You should make a will if you have responsibilities and assets. It means that you can specify who is to get your property on your death. You can also provide for the special need of family members and it can also act as a tax planning opportunity.
Who will look after your affairs on your death?
When you are making your will you will appoint an Executor. This is someone who you believe will be a suitable person to handle your affairs on your death. You cannot appoint someone who is under 18 and you should not appoint someone elderly.
What is the benefit of appointing an executor?
An Executor is someone who is chosen specifically by you. If you do not make a will your estate will vest in the President of the High Court until the administration is granted. The person who will be appointed to administer your estate will be appointed in accordance with law and will not necessarily be the person you would have chosen.
Will the will I make now be sufficient for the rest of my life?
No. You should update your will as your individual circumstances change and as legislation changes.
Who can make a will?
A will can be made by a person who is 18 or is or has been married and is of sound disposing mind. If you are entitled to appoint a guardian of an infant you may make this appointment by will notwithstanding the fact that you are not 18 or are not married.
What can a will dispose of?
You can dispose of all property to which you are entitled at the time of your death.
Can I dispose of my property during my life?
Yes. Your will takes effect from your death and you can sell or dispose of property during your lifetime.
Can I change my will once I have made it?
Yes, you can change your will whenever you wish. Your will can be revoked by you at any time prior to your death. It will be revoked by your subsequent marriage except a will made in contemplation of that marriage to someone in particular. A will is not revoked by divorce. Revocation of a previous will can be carried out by a will or some writing declaring an intention to revoke it but this must be signed by you in the presence of two witnesses and the witnesses must sign in your presence and in the presence of each other.
The act of destroying, burning or tearing up a will must be done with the intention of revoking it and this must be performed by you or by some person in your presence and by your direction.
Who will be the guardian of my minor children?
You can appoint a guardian in your will. Where you die leaving the other parent surviving, the surviving parent is the guardian in the majority of cases. If there is a non-marital child, it is necessary for the father of the child to apply to court to be appointed as guardian.
What happens if I dispose of an asset during my lifetime that I have left to someone in my will?
If your leave a particular item to a beneficiary by will and then subsequently sell or dispose of the item during your lifetime the bequest has ceased to exist and the beneficiary does not take any benefit.
What happens if I have insufficient assets in my estate?
Where your estate is insufficient to meet your debts and liabilities there are strict rules governing the order in which the assets are distributed.
What happens if the beneficiary dies before me?
In most cases a gift to a named person will lapse if this person predeceases you unless a contrary intention is expressed in your will. For example, if the predeceased beneficiary is your lawful child and has children who are living at the date of your death, then the gift will pass to your predeceased child’s estate and will be distributed in accordance with their will or the rules on intestacy.
Do I have to provide for my spouse and children?
Legislative provisions can affect your ability to dispose of your property freely by Will.
If you leave a spouse and no children then your spouse will have a legal right share to one half of your estate. If you leave a spouse and children, the spouse shall have a right to one third of your estate.
Your child is not entitled as a right to any part of your estate but there is a protection for children in the form of a right to make an application to court. The relevant test for the court to decide is whether you have failed in your moral duty to make proper provision for the child. If this is established then the court may order whatever provision it considers just to be made out of the estate.
A surviving spouse has the right to require the personal representatives to appropriate the family home in or towards satisfaction of any of his or her share.
What is the legal position of non marital children?
Children born outside marriage have equal rights to those born inside the institution of marriage. If you want to make provision for all your children in equal shares this will automatically include both marital and non marital children unless you state otherwise in your will.
Terence Moran – tmoran@hayes-solicitors.ie