making a will - what you should know

Making a Will - what you should know

Sarah Lennon

Inclusion Ireland

Presentation Overview

• Introductions

• Why should I make a will?

• Components of a valid will

• Different considerations

• Assisted Decision Making Bill

• Questions

Introductions

The Vision of Inclusion Ireland is that of

people with an intellectual disability living

and participating in the community with

equal rights as citizens, to live the life of

their choice to their fullest potential.

Why Make a will

If you don't then you have died ‘intestate’ and

strict rules apply

You have no say in how your estate is divided

Verbal assurances may not have effect

Any wills you make doesn’t have to be final–

can be changed or altered

Intestacy

Do I need a solicitor?

Not technically needed

It is usual to hire a solicitor, especially if creating

trusts

Legal accuracy is important especially with trusts

Invalid wills means that the rules of intestacy kick

back in

A Valid Will

• Must be in Writing and signed

• Must be witnessed (signature)

• You must be over 18 or have been married

• You must be of sound mind & free will

• 2 executors

A Valid Will

• Must include your name and address,

• a statement revoking earlier wills included

• Statement naming executors

• A residuary clause (e.g. "The remainder of

my estate I leave to my son, Jack".

Witnesses

• 2 required

• Must sign after you have signed

• May not receive a gift

• Their spouse may not receive a gift

Executor

A person named in the will who has the job

of carrying out the terms of the will

Can benefit from will (unless they or their

spouses are witnesses)

Over 18

Sound Mind

Do I have to leave my property to my children equally?

No

Any child who feels they were not treated

fairly can bring a court application

Must show proper provision wasn't made

Provision can include money given during

life time

Challenging a will

• Generally 3 areas– Lack of Capacity (Sound Mind)

– Undue Influence (Pressure)

– Failure to provide for certain family members

• Application must be made to court

Sound Mind

Have legal capacity

Understand that you are making a will

Only mental state of person at time they

made will – not at a later stage

Ward of Court cannot make a will

Undue Influence

• Where the relationship between two people

allows advantage to be taken of a person

• A decision is taken on foot of that pressure

• Types of relationship – parent, spouse,

solicitor, doctor etc.

Providing for Family Members

• ‘Moral Duty’ – cannot disinherit children or spouse /

civil partner

• 6 months limit on challenges

• Consider the will and any previous gifts

• Children inside and outside marriage

• Co-habitees have no legal right but a ‘qualified

cohabiter’ may apply to the court

Capital Acquisition Tax• Gifts are tax free up to a certain amount depending on the

relationship

• After 6 December 2012 - Threshold amount Nil & Balance 33%

• Spouse & Civil Partner are exempt

• Group A – Children - €225,000

• Group B – Parents (can be group A), Grandparents,

Grandchildren, Siblings, Nieces & Nephews - €30,150

• Group C – All other relatives €15,075

Disability Allowance

• Means test looks at all your capital, for

example, the value of savings,

investments, shares, any property you

may have (other than your own home).

• The first €50,000 of any capital you have

is not taken into account.

Disability Allowance

Discretionary Trust

• ‘discretionary’

• May be useful for a person who is

receiving a social welfare payment

• Indirect provision

• Other uses and assurances

Discretionary Trust

Has Tax benefits

Helps preserve state benefits

Person only has a life-interest in trust fund

Important that payments are periodic –

regular payments seen as maintenance /

income

Trust Funds

Can be done while living or through a will

Letter of wishes can accompany the trust

document Not binding

Clear guidelines or priorities for trustees

Trustees

• ‘Trust’

• Significant responsibility

• Trustees have secondary liability for tax

• Consider who and how many

• Discuss role

Trust Tax

• Discretionary trust tax (6% initial, 1% annual)

• Trustees must notify the revenue

commissioners & self-assess

• Exemptions – Children (until they turn 21)

– Incapacitated persons

– Public/charitable

Trustees

Who should be a trustee?

“Trust”

Age Profile

Consider 3

Professional or Family

Discuss

Guardianship

Where a child – under 18 - testamentary

guardian

Where an adult – over 18 – guardiansip

not possible

Ward of Court is only adult Guardianship

Ward of Court

1871 – outdated

Restrictive, travel etc.

Anyone can apply, solicitors, family

members, doctors, HSE

Committee is appointed for personal or

financial decisions

Assisted Decision Making Bill

• No longer Ward of Court

• Office of the Public Guardian

• Various Structures

– Assisted Decision Making

– Co-Decision Makers

– Personal Representative

How will Decisions be Made?

1. by the person autonomously

2. By the person with assistance

3. Informally by another person

4. By the person with a co-decision

maker

5. By another person

(representative or attorney)

Outside of the Court System

Through the Court System

Wards of Court

• Everyone who was a ward before the Act will be reviewed

within 3 years but can apply to court for review as soon as

the Act is passed

• Everyone who was a ward will be discharged eventually,

and a different order will be made (e.g. co decision-making

or representative) but the court will decide when this will

happen and will base this on the person’s capacity

Summary

• Dying without a will – Intestacy

• With a will – there are certain restrictions

• Trust Funds & Trustees

• Assisted Decision Making Bill

Thank You

• Q&A