Should I make a will?
The simple answer to this is always yes. The principal purpose of a Will is to protect and provide for your loved ones and to allow legal effect to be given to your wishes. Making a will can be a very straightforward process, or if there are complex issues, they should be revealed at this stage, which will allow you to deal with them while you are alive, which will prevent unnecessary distress and expense to your loved ones. Estate planning will help ensure the maximum amount of money will pass to your beneficiaries, with the least amount being paid in tax, or in legal fees. Whereas it is not a legal requirement to execute a will in the presence of a solicitor, it is a complicated area and it is extremely advisable to take legal advice to ensure your will does what you want it to do. Making a will can be more complicated than you realise and what may seem like small details can have serious legal consequences. For that reason you should have a Solicitor guide you through the confidential process of making a will for the benefit of your loved ones.
Before you make appointment it is a good idea to list the questions you would like answered as well as your instructions regarding your money and possessions. You should also have an idea of how you want your estate to be divided, as well as your choice of executors and funeral arrangements.
If any of the following apply to you, then you should seriously consider making a will:
- If you are married and have children
- If you previously made a will but have since married
- If you live with your partner but you are not married
- If you wish to ensure that whatever you leave is distributed with the minimum delay
- If you are a homeowner
- If you set up your own business or firm
- If you are getting divorced or separated or have recently divorced or separated
- If you wish to leave some money/assets to your relatives
- If you wish to leave some money/assets to someone with disabilities.
- If you want to give some money/assets to a charity or a special cause.
- If you want to reduce the tax liability on your estate allowing you to leave more to your loved ones and favourite causes
- If you want to establish a trust for children who are under 18 years of age, or for other beneficiaries who may need money managed for them
- If you want to name a testamentary guardian to replace you as guardian for your children
The Legal Essentials:
In order to make a valid will you must be over 18 years of age and have sufficient mental faculty to know and understand the nature and effect of your actions. Sometimes a medical opinion may be required.
An executor or Legal Personal Representative extracts a Grant of Probate or Administration in an estate. It is their responsibility to ensure that all creditors of the estate are paid, all taxes are paid, and all beneficiaries are paid their inheritance. Again, if you are an executor or are taking out a Grant in an estate, you should take legal advice as the area is complicated and the legal obligations onerous. We at McInerney Solicitors will be happy to assist and advise your executor at every step and make the process as easy as possible for them.
The executor can be a family member, a close friend or your solicitor.
Spouses and Children
Spouses and children are the usual immediate beneficiaries of any will. By law, where there is a will, a spouse has the legal right to half of the estate in question if there are no children. If there are children, then the spouse receives one third of the estate. It is up to the spouse to choose this legal right or what is set out in the will if different. This rule is known as the Legal Right Share and arises under Statute.
If no will has been made, then your spouse is legally entitled to all of the estate (if there are no children) and two thirds of your estate if there are children.
If children (under 18 years of age) are beneficiaries of a will, then Trustees should be appointed to handle the benefit until the child has reached adulthood.
Changing your will
You can change your will at any time. The simplest way to change your will is by making a new one. There are many reasons why you may decide to do this (wedding, divorce, births, deaths).
An executor or Legal Personal Representative extracts a Grant of Probate or Administration in an estate. It is their responsibility to ensure that all creditors of the estate are paid, all taxes are paid, and all beneficiaries are paid their inheritance. Again, if you are an executor or are taking out a Grant in an estate, you should take legal advice as the area is complicated and the legal obligations onerous.
There are a number of issues of concern to family members, Executors/ Administrators and Beneficiaries immediately following the death of family members or friends. We can attend to the legal formalities following the death of a family member:
- Arranging with the deceased's bank for prompt payment of the funeral expenses
- Gathering information, calculations for the completion of Revenue Returns prior to the application to the Probate Office
- Application for Grant of Probate in cases where a person dies having made a will
- Application for Grant of Administration in cases where a person dies without having made a will.
- Examination of rights of those entitled to the property of the deceased
- Examination of rights of spouse and rights of children arising as a result of the deceased having made a will or having died intestate
- Completing probate tax and inheritance tax returns
- Sale of assets and distribution of net proceeds
Twelve months for administration
An Executor/Administrator has 12 months from the date of death to deal with the administration uninterrupted. After that time frame, the beneficiaries will be entitled to query delays and may apply to carry out the administration themselves if they feel that the existing Executor/Administrator is not performing adequately.
Once the Grant of Probate/Administration is issued from the Probate Office, it is sent to the various financial institutions and the assets of the estate are collected. These assets are then distributed in accordance with the Will (if one exists) or in accordance with the rules of intestacy (where there is no Will) which are contained in the Succession Act 1965.