Guide to Making a Will
Making a Will sets out what should happen to your assets after your death. Without one, your property will be distributed in accordance with the law and this might not suit your intentions. Where it is particularly important is where you have children under eighteen. In the absence of a Will, one third of your property will pass to your children but because they are under eighteen, nothing can be done with the property unless they are made Wards of Court.
What is a Will and Why is it Important?
A will is a legal document that specifies how your assets should be distributed after your death. It ensures that your wishes are followed and provides clarity for your loved ones. Without a will, your estate will be distributed according to the laws of intestacy, which may not align with your preferences.
Creating a will is particularly important if you have dependents, own property, or wish to leave assets to specific individuals or charities. A well-drafted will can also help minimise inheritance tax and prevent potential legal disputes among family members.
In preparing to make your Will, you need to think about the following.
- Who are your executors to be?
The executors are those who are obliged by law to carry out the terms of your Will. In practice this means attending the offices of your solicitor after you die to ensure that the terms of the Will are carried out. You can have one or more executors but we would generally suggest that you have at least two. This provides for a situation where it might not suit one executor to act. Your executor can be your spouse and can be one of the beneficiaries in the Will. They can be a family member or sometimes they might be a professional like your solicitor or an accountant.
- Your assets.
You must decide how you want your assets distributed. We would encourage a married couple to provide for a situation where both parties pass away (for example in an accident).Your spouse is entitled to claim one third of your estate if they are not provided for in the Will. While your children have no right to anything in your Will, it is open to them to seek an Order from the Court afterwards that they haven’t been properly provided for.
You should prepare a list of your assets before visiting your solicitor to make your Will and this list of assets can be put with your Will to make it easier for your executors to know the extent of your estate.
While the decision as to how to distribute your assets will be entirely yours, we will provide guidance and advice from our experience as to how you might avoid any difficulties after your death.
- Tax consequences.
Inheritance tax has increased in recent years and an important part of the advice we provide is tax planning i.e. ensuring that your beneficiaries pay as little tax as possible.
- Our obligations.
The obligations imposed on solicitors in preparing a Will are very onerous and for that reason the task is taken very seriously. For example, the Courts have found in the past that should the solicitor make any error as a result of which a beneficiary loses out, that beneficiary has a case against the solicitor. The solicitor must do his/her best to ensure that what is contained in the Will can be carried out. In a recent case, a Judge found that because the solicitor didn’t establish that the person making the Will owned the property (it was in the name of his company), he was responsible to the intended beneficiary of the property. Solicitors, therefore, will give great attention to the preparation of the Will.
- The process.
What normally happens is that you attend our offices with a list of your assets and we discuss your Will and take instructions for its preparation. When the Will is prepared, we will write to you telling you so and asking you to call to sign it. Generally, we will not have a will prepared and signed on the same day. We find that preparing in such haste doesn’t give sufficient time for full consideration of the Will.
What Should Be Included in a Will?
A well-structured will provides clear instructions on how your estate should be handled. It ensures your assets are distributed according to your wishes and helps prevent potential disputes among beneficiaries.
When drafting a will, it is essential to include key elements such as the appointment of an executor, a list of beneficiaries, and specific details about how your assets should be divided. If you have minor children, you should also designate a legal guardian to care for them in your absence.
A Will Should:
- Clearly outline your beneficiaries and their entitlements.
- Appoint a reliable executor to manage your estate.
- List all assets, including property, savings, and valuable possessions.
- Designate a guardian for minor children if applicable.
- Ensure your will is signed and witnessed correctly to be legally valid.
What Happens If You Die Without a Will in Ireland?
Dying without a will is known as intestacy, meaning your estate is distributed according to the Succession Act 1965 rather than your wishes. This can lead to unintended consequences, particularly if you have a partner or dependents not legally recognised under intestacy laws.
The law prioritises family members in a strict order, which may not reflect your actual intentions. For example, if you are married with children, your spouse inherits two-thirds of your estate, while the remaining third is divided among your children. If you have no immediate family, your estate may ultimately go to the state.
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After you make your Will,Your solicitor will store the Will in their Wills safe and electronically (to provide for fire). Your Will is not effective until you die and you can change it at any time.
Do You Need Advice With an Issue Related to Wills and Probate?
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At Patrick J Farrell & Company Solicitors, we understand the difficulties in navigating the legal challenges related to wills and probate. With a legacy founded by Patrick J. Farrell and carried forward by a dedicated team, we have been advocates for justice for over four decades. Our commitment to putting our clients’ interests first, combined with our extensive legal expertise, makes us the ideal partners in your pursuit of justice.
From the moment you walk through our doors to the resolution of your case, you’ll be treated with the utmost courtesy, respect, and understanding. Choose us – where your well-being is our top priority. Reach out to us today and let our experienced solicitors guide you every step of the way.
More Wills & Probate Resources
Wills/Probate Legal Terms Explained
Probate/Property of the deceased
Do I Need a Solicitor when Making my Will?
I am a Beneficiary of a Will – What Can I Expect?
Dealing with the estate of a deceased person in Ireland
Assisted Decision-Making (Capacity) Act, 2015
Frequently Asked Questions
Guide To Making a Will
Why should I make a will?
Making a will ensures that your assets are distributed according to your wishes after your death. Without a will, the law dictates how your estate is divided, which may not align with your preferences.
What are the legal requirements for a valid will in Ireland?
To be valid, a will must be in writing, the testator (person making the will) must be over 18 years old or married, of sound mind, and the will must be signed in the presence of two
Can I write my own will, or do I need a solicitor?
While it’s possible to write your own will, it’s advisable to consult a solicitor to ensure the will is legally valid and accurately reflects your intentions, especially if your estate is complex.
What happens if I die without a will?
Dying without a will (intestate) means your estate is distributed according to the rules of intestacy, which may not align with your wishes.
Can I change my will after I’ve made it?
Yes, you can change your will at any time, provided you have the mental capacity to do so. Changes can be made by creating a new will or adding a codicil.
Who should I appoint as my executor?
An executor is responsible for administering your estate according to your will. Choose someone trustworthy and capable, such as a close family member, friend, or professional advisor.
Are there tax implications for my beneficiaries?
Beneficiaries may be subject to Capital Acquisitions Tax (CAT) on inheritances, depending on their relationship to you and the value of the inheritance. It’s important to seek legal and financial advice on potential tax implications.
What is a codicil?
A codicil is a legal document that makes changes or additions to an existing will. It must be signed and witnessed in the same manner as the original will.
Does marriage or divorce affect my will?
Marriage automatically revokes a will unless it was made in contemplation of that marriage. Divorce does not revoke a will, but it may affect provisions related to your former spouse. It’s advisable to review your will after such life events.
Where should I store my will?
Store your will in a safe place, such as with your solicitor or in a secure home location, and inform your executor of its whereabouts to ensure it can be located when needed.
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