Make a Will

A Will is simply a document that sets out how you wish your assets to be distributed on your death and who will look after distributing your assets.

A Will of course might need to be changed as your life progresses and as your circumstances change. It is important that your Will is updated to reflect any changes you wish to make.

Reasons to change your Will could include:

  • marriage, remarriage , divorce or separation
  • cohabiting or entering into a civil partnership
  • the birth of child or death in your family
  • change in your financial circumstances

While nobody likes to be reminded of their mortality, it really is never too early to make a Will, especially when you have loved ones and have assets that would be distributed if you died.

Once you have made a Will you will find that it is a great relief and peace of mind knowing that your loved ones have been provided for. People often put making a Will on the long finger which, given that tomorrow is promised to no one, can result in complex costly delays to providing for their loved ones.

  • A Will lets you document any specific wishes as to who should gain from your estate on your death.
  • When you die without a Will (also called dying intestate) the rules on intestacy, set out in the Succession Act, 1965 apply.
  • Simply put, if you don't make a Will, after your death the State will step in and administer your estate.
  • Having a Will in place, allows for quicker and less expensive administration of your estate.

There are 10 parts to a Will that are considered essential in making the Will legally valid and bullet-proof:
  • The testator's (person making the will) name and address.
  • A revocation clause which is used to ensure that your earlier Wills and Codicils no longer have any legal effect.
  • A list of clearly identified executors.
  • A list of legacies i.e gifts of money or goods.
  • A list of devises i.e. gifts of real property – land, houses etc.
  • A residuary clause. This is a catch-all clause to deal with the rest of the estate.
  • The date the Will is made.
  • The testator's signature.
  • An attestation clause – stating that the Will has been signed by the testator on that date and witnessed by the witnesses
  • The signature of the two witnesses, with their addresses and descriptions.

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A Will is automatically revoked when you register a marriage/civil partnership unless it was made in contemplation of that marriage/civil registration.

Rules:
  • If you are not married/in a civil partnership, you may only inherit from your partner if you are left a bequest in a valid Will.
  • However, a spouse/civil partner is entitled to what is called a "legal right share" of their deceased spouse's estate even if:
    • there is no Will
    • the Will is invalid
    • there is a valid Will, but it leaves little or nothing to the surviving spouse.
Spouse/Civil Partner Inheritance Rights:
  • The amount of the surviving spouse's/civil partner's legal right share depends on two factors:
    • whether or not there is a valid Will
    • whether or not the deceased spouse/civil partner has any children.
  • You are entitled to the whole estate if:
    • there is no Will or the Will is invalid, and
    • the deceased spouse/civil partner has no children or grandchildren.
  • You are entitled to two-thirds of the estate if:
    • there is no valid Will, and
    • the deceased spouse/civil partner has children or grandchildren.
  • You are entitled to one-half of the estate if:
    • there is a valid Will, and
    • the deceased spouse/civil partner has no children or grandchildren.
  • You are entitled to one-third of the estate if:
    • there is a valid Will, and
    • the deceased spouse/civil partner has children or grandchildren.
If you are the surviving spouse/civil partner:
  • You must be informed of your inheritance right and should apply for your legal right share as soon as possible.
  • You may require that the family/shared home be given to you in satisfaction of your legal right share, even if the home was left to another person under the Will.
  • If the family/shared home is worth more than the legal right share, you will normally have to pay the difference into the deceased's estate. However, in cases of hardship, you may apply to the court to have the dwelling house given to you either without paying the difference or by paying such sum as the court deems reasonable.
Children's Inheritance Rights:
  • Both marital and non-marital children have equal rights to inherit from their parents.
  • However, non-marital children may have the additional burden of having to prove paternity if it is disputed.
  • Children's inheritance rights may be affected by their deceased parent's marital status.
  • The children (minor and adult) are entitled to the entire estate divided equally between them if:
    • there is no Will or the Will is invalid, and
    • the deceased parent is not married or his/her spouse is already dead.
  • The children are only entitled to one-third of the estate divided equally between them if:
    • there is no valid Will or the Will is invalid, and
    • the deceased parent is married and is survived by his/her spouse.
  • Children have no absolute right to inherit their parent's estate if the deceased parent has made a valid Will.
    • However, if a child considers that he/she has not been adequately provided for, he/she may make an application to court.
    • The child need not be a minor or be dependent in order to use this procedure.
    • The court has to decide if the parent has "failed in his/her moral duty to make proper provision for the child in accordance with his means".
    • Each case is decided on its merits and the court looks at the situation from the point of view of a "prudent and just" parent. Anyone considering challenging a Will on these grounds should get legal opinion before applying to the court

The executor(s) of a Will are the person(s) appointed by you to look after your affairs/estate once you die and to make sure that your wishes, as set out in your Will, are put into place. This executor(s) take out what is called a "Grant of Probate", which is the legal process to prove the Will and give the executor(s) the authority to carry out the wishes in the Will.

The responsibility of administrating your estate and carrying out your wishes in your Will on your death falls to the executor(s) and therefore you should give careful thought to your choice of executor.

Can your Executor(s) benefit from your Will?

Yes, executors can legally be beneficiaries of your Will.

The duties of an executor

The duties of an executor include the following:

  • Taking charge of and protecting your assets, such as making sure that the property is insured, that property tax is discharged, ascertaining what assets you have (i.e. bank accounts, shares, pensions and life policies, etc.);
  • Taking care of funeral arrangements – you should let your executor and family know what your wishes are in relation to burial and funeral arrangements; It is common that the reading of the Will takes place after the funeral. While an individual can set out their wishes as to their burial and funeral arrangements in their Will, it is important to let the family know as it is common for family members to make arrangements without reference to an individual’s Will.
  • Notifying the beneficiaries named in your Will what gift or share of the estate they are to receive.
  • Obtaining the Grant of Probate from the High Court which gives them authority to administer your estate. This is a High Court document that the executor applies for so he/she can gather in the assets of the estate and distribute the estate as per your Will.
  • Paying funeral expenses and discharging any debts of your estate.
  • Finalising any outstanding income tax returns.
  • Distributing your assets according to the directions you have set out in your Will. Sometimes in order to distribute your assets it may include the selling the property, shares, etc.
Who should you appoint as your Executor(s) in your Will?
  • An executor doesn't need any special skills, but you do want someone who you would deem to be reliable.
  • While there is no limit on the number of co-executors you can appoint, for reasons of practicality you should only appoint a maximum of 3. This covers the eventuality that an executor dies before you or an executor is unable or unwilling to act as executor after your death.
  • While you don't need their consent, it's advisable to discuss your intentions or wishes to make a said person as your executor before you make your Will.
  • Mostly it is family members who are appointed as executors and ideally the executors should be living in the country to avoid any practical difficulties.
  • There is no age requirement but you probably shouldn't appoint someone who is too elderly or still a minor.
  • It is important to note that if you appoint an executor who is under the age of 18 years at the date of your death, they will not be permitted to apply for the Grant of Probate. The minor’s guardian or such person as the court thinks fit can be appointed to apply for the Grant of Probate for the minor.
  • Appointing professionals can lead to costly additional fees for your loved ones. Should they need professional help and advice, they can hire professional advice as and when they need it.

  • The Residuary clause deals with the remainder of your estate after all specific gifts and bequests have been made and all claims of the estate are satisfied.
  • The Residuary clause includes any estate you accumulate/inherit after you have created your Last Will e.g. you inherit a priceless Monet painting from a deceased relative after you create your Will. If you don't amend your Will to specifically bequest the Monet, the priceless Monet will be dealt with by the Residuary clause.
  • The Residuary Clause gives the right to the residuary estate to one or more named beneficiaries.
  • The Residuary Clause handles property that may have been overlooked or not otherwise disposed of in the Will.
  • The Residuary Clause can handle bequests that are void due to the death of the beneficiary.
  • The Residuary Clause also covers property that is acquired after the Will was written, and which was not specifically mentioned within the Will.
  • It is a very important clause as without it, any property which is not specifically dealt with in the Will would pass according to the Rules of Intestacy

There are a couple of rules you need to follow when you are having your Will signed and witnessed:

  • You must sign or mark the Will or acknowledge the signature or mark in the presence of two witnesses.
  • By signing your Will, the witnesses certify that the Will has been executed before them.
  • Your witnesses must see you sign the Will but they do not have to see what is written in it.
  • The signature or mark must be at the end of the Will.
  • A BENEFICIARY OR THEIR SPOUSE CANNOT WITNESS YOUR WILL. Section 82 of the Succession Act (1965) says that where a person who witnesses the execution of a Will also stands to benefit under the Will then the devise, bequest, estate, interest, gift or appointment is made "utterly null and void".
Witnessing during COVID-19
  • If you are self-isolating it is still important that you don't put off having your Will signed and witnessed.
  • You could arrange for both of your witnesses to watch through a closed window as you sign your Will. It is important that they're both present at the same time for this.
  • After ensuring that your witnesses have recently sanitised their hands, pass your will through your letterbox/window while ensuring you keep a 2-metre distance.
  • You and your witnesses can then return to the window and watch them both add their details and signatures to your Will.
  • They can then return the will to you through the letterbox, allowing you to put it away somewhere safe.

If money is held in the deceased person’s name only, then family members usually cannot get access until probate is granted to the Executor(s).

Joint Bank Accounts
  • Summed up briefly, both persons named on the account are presumed to be the beneficial owners of the assets of the account.
  • If the bank account is in the joint names of the deceased and the deceased's spouse or civil partner, the money can usually be transferred into the survivor's name. You will need the death certificate to do this.
  • If there is an account with more than €50,000, you will also need a letter of clearance from Revenue allowing the money to be transferred to the surviving spouse or civil partner.
  • Spouses and civil partners are not liable for Capital Acquisitions Tax (CAT) on inheritances from each other.
Credit Union Accounts

Credit unions have a nomination facility whereby if you are over 16 years of age, you can nominate someone to receive the property of your Credit Union accounts upon your death.

If you die without leaving a Will the monies left in the Credit Union will not have to pass through the normal intestacy process.

  • You may nominate a person(s) of choice to receive your property presently up to a maximum value of €23,000.
  • The nominated property up to €23,000 does not form part of your estate.
  • Any amount in excess of €23,000 will form part of your estate.
  • You may change the details of your nomination as often as you like by signing the relevant nomination form in your Credit Union.
  • The most recent nomination is the valid nomination.
  • A nomination is not revocable or variable by the terms of your Will or by a codicil to your Will.
  • A nomination is automatically revoked when your nominee dies before you. In this case, you should consider completing a new nomination. If you do not, your property in the credit union may form part of your estate.
  • Where your personal circumstances change (e.g. marriage, divorce or separation) you should review your nomination at that time.
  • A nomination is automatically revoked by your subsequent marriage.