Family Law in Ireland
Wills & Probate
Why do I need a will?
The main purpose of a will is to provide for your loved ones after you die, to protect your loved ones, and for your wishes to be carried out legally. A will prevents unneeded duress and expense for your family. By making a will, your wishes will be properly recorded. Additionally, if you want to leave a gift to your special charity, you can do so easily and confidentially.
What if I don't make a will?
In that case your property will pass intestate. That means, you will have missed the opportunity to decide who gets your assets and the laws of the country determine who gets what. If you are married with no children then all the property will go to your spouse. If you are married with children, then your spouse will receive one third of the estate and the children will share the remainder.
How do I make my will?
You are of course entitled to make the will yourself. However, you need to be careful as there are certain formalities that must be observed for the will to be admitted into probate. It is probably advisable for you to have a Solicitor to draft the will for you. That way, you can be very sure that your family is being fully protected and you can always leave he will with your Solicitor for safekeeping. The solicitor would be expected to have a fireproof safe in which to maintain wills. Absent extraordinary circumstances or very extensive assets, the costs of drafting a will are very reasonable, usually in the region of 0 200. Please feel free to call and we will be happy to provide information.
General outline of clauses in a Will:
Testator's name, address and revocation clause;
Appointment of Executors
Negation of Advancement (s63 clause)
Negation of Status of Children Act, 1987 clause
Child dies without leaving children
Signature of Testator
How do I ensure my children are taken care of?
The children are automatic beneficiaries of your will. If they are under the age of 18 at the time of your death a Trustee can be nominated to take care of the inheritance until the child comes of age. You are also entitled to nominate a guardian for the children in your will. However, when a Testator dies leaving the other parent surviving, the surviving parent is the legal Guardian of the child in most cases.
Why do I need an Executor?
Because you need someone who will be responsible for following the instructions of the will and carrying out your wishes. Your Executor (male) or Executrix (female) will identify and gather your assets and debts. He/she, usually working with a solicitor, will then ensure that your lawful bills are paid and your possessions are distributed in conformity with your instructions.
Must the Executor be related to me?
No. The Executor can be anyone you choose, including a relative, friend, or, on occasion, your solicitor.
If I want your firm to draft my will, what is the process?
When you come for your first appointment we will discuss your situation and your goals. If you want to proceed with us, we will give you a Questionnaire to take home and complete at your leisure. The Questionnaire will ask about your personal information and require you to name your next of kin and beneficiaries with as much identifying information as possible. You will also be asked to identify your assets and, where appropriate, provide proof of ownership of the asset, ie, title deeds, share certificates etc. You will also be asked to name the beneficiaries for each gift. Just in case you forget to identify an asset, we will include a residuary clause, which will give all unidentified assets to a named beneficiary. This ensures that some unidentified asset does not have to pass intestate. Once you return the completed form to us we will draft the will and later you may come into the office to sign the will in front of the necessary witnesses. Don't forget, a witness may not be a beneficiary of the will. Also, if you are acting for yourself, be sure you state that this will replaces all previous wills, if that is indeed your intention.
What if I need to make changes?
No problem! You may change the will as often as necessary. Changing your will is a relatively simple process. The changes are usually accomplished by adding a Codicil (amendment) to the will. However, sometimes, depending on the circumstances, it may be more appropriate to draft a completely new will. If you are acting for yourself, be very careful because the Codicil, to be effective, requires the same formalities as the original will.
How can I revoke a will?
There are five ways in which a will may be revoked:
By a subsequent marriage;
By a properly executed subsequent will or codicil;
By a writing, properly executed, declaring an intention to revoke the will;
By the burning, tearing or destruction of the will by the Testator (you), with the intention of revoking it; and
By the burning, tearing or destruction of the will by some person who is in the presence of the Testator and by his or her direction, with the intention of revoking it.
What happens when I pass away?
Your Executor will contact the solicitor and, working together, they will open probate and ensure your wishes are carried out.
NEXT PAGE: Irish Probate Law
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