wills intestacy

July 2014

wills and intestacy

FLAC Legal WiILLS_Layout 1 26/06/2014 19:00

You may also be interested inFLAC's leaflet on 'Probate' whichcovers the process of carrying outthe provisions of a will.

Why should I make a will?

A will is the only way of safeguarding thefuture of those whom you care for. When youdie, your affairs must be wound up. There arelikely to be outstanding bills to be paid as wellas property which needs to be distributed.

Making a will simplifies all of this. It allowsyou to decide who gets what, with minimumdelay and hassle. Without a will, thedistribution of your assets will be determinedby law - the law of intestacy (see below) - andtherefore people outside your family will notreceive anything and/or members of yourfamily may not receive what you would havewished. A will can also be used to exemptyour next of kin from paying tax.

It is very important for you to make a will ifyou have any children under 18 or any long-term dependents. You can also draw up adocument to appoint a testamentaryguardian to a child or include a term to thiseffect in your will. This is a trusted person whowill be responsible in part or in full for thewelfare of any children under 18 in the eventof your death.

2

wi l l s and in tes tacy

Wills andIntestacy aregoverned bythe SuccessionAct 1965


3


How do I make a legally valid will?

There are very strict guidelines as to whatmakes a will valid. These are:

1. The testator (person who makes thewill) must be over 18 years of age (orbe married; however, unless you get aCourt Exemption Order, the legal ageof marriage is 18).

2. He/she must act of his/her own freewill – not under pressure from anotherperson.

3. He/she must be of sound mind andmemory and understand that he/she ismaking a will.

4. The testator must know the nature andextent of his/her property and becapable of naming all of the peoplewho may expect to benefit from his/herestate.

5 The will must be in writing.

6. The will must be signed at the end bythe testator. If the testator cannot signit then he/she must direct someone elseto do so in his/her presence. The‘signature’ can be the initials of thetestator or, if the testator is physicallyunable to sign or illiterate, then itcould be a mark made by him/her.


4


7. That testator’s signature must be madein the presence of TWO witnesses whoare both present at the same time.

8. The witnesses must sign their signaturein the presence of the testator, ideallyin the presence of each other but notnecessarily so.

9. A witness or his/her spouse cannotbenefit under the will.

Where these formalities are not respected, thewill may fail and, if so, the law in relation tointestacy will then determine how yourproperty is distributed.

Can I draw up the will myself and save costs?

Due to the complex rules for making a will,you should seek the advice of a solicitor. Alltoo often a will can fail due to one of therules not being correctly carried out whichmeans that the dead person's wishes may notbe respected. Your will is open to challenge ifit does not meet all the legal requirements.Also, you may not be aware of the full rangeof issues that your will can cover and providefor. However, it is possible for a non-lawyer todraw up and execute a valid will without legaladvice.


5


What is an executor?

The executor is the person named in the willwho has the job of carrying out the terms ofthe will. Preferably, there should be morethan one executor.

Executors can benefit (receive property,money or a gift) from the will. However, nowitness to a will or the spouse of that witnesscan benefit. They must be over 18 and notsuffering from a legal disability: this is when aperson is barred from performing certainduties because they may, for example, not beof sound mind or have been declared abankrupt. Otherwise they cannot get a grantof probate. A grant of probate allows theexecutor to deal with the deceased person’sassets.

What sort of things should I think aboutincluding in my will?

You will need to think about the people whowill be affected by your will - if you have anyspouse or partner, current or former, civilpartner, any children, grandchildren and soon. You will need to think about anyproperties you own or co-own, both in Irelandand abroad. Have you made any foreign wills?Do you have any other interests at home orabroad? What items of value do you own -car, jewellery, shares, unit trusts, furniture,


bank accounts and so on? Do you have anypensions or life insurance or endowmentpolicies, and what arrangements are providedin them should you pass away? Joint accountsshould be carefully examined as it is notautomatic that the other account holder willtake over on your death.

What do I need to include in my will?

4 Name and address of the testator.

4 A revocation (cancellation) of any earlierwills.

4 The appointment of executors – preferablymore than one, giving addresses andrelationship to you, if any.

4 A list of legacies (gifts of money or goods).

4 A list of devises (gifts of real property, suchas land).

4 A residuary clause – this lays out how anyleft-over estate (possessions or property)should be distributed.

4 The date. If this is absent, a witness willhave to swear as to the date of the will.

4 The signature of the testator at the end ofthe will.

6



7


An attestation clause, which is evidence thatthe testator signed the will in the presence oftwo witnesses and that the two witnesseseach signed the will in the presence of theother. If this is absent the will is not invalid,but the Probate Office will require an affidavitfrom one of the witnesses.

An example of an attestation clause:

“Signed, published and declared by saidtestator as and for her last will and testamentin our presence who in her presence and ather request and in the presence of each otherwe have hereunto subscribed our names aswitness, this will having been printed/writtenon one single A4 page.”

In the past, testator was the word used if theperson making the will was male and testatrixif female, but ‘testator’ is now commonly usedfor both men and women.

Can I change my will?

You may change or alter your will at a laterdate. It is a good idea for a person who hasmade a will to read over and review their willfor any changes every five years or so. Allchanges, additions and alterations must besigned, dated and witnessed in the same waythat the will was made.


8


Can I make more than one will?

You may make more than one will, forexample, when you own property in morethan one country. If you want to make acompletely new will regarding certainproperty, you must revoke (cancel) a previouswill that also deals with the same property.

Revocation of a will is automatic where:

l If you marry or enter into a civilpartnership, your will shall be revoked,unless you had made your will incontemplation of that marriage or civilpartnership.

l If you make another will, the first will youmade shall be revoked.

l If you draw up a written document that isexecuted in accordance with therequirements for a will, your first will shallbe revoked.

l If you burn, tear or destroy your will, it willno longer be considered valid. Or, if youhave someone else destroy it, your willshall be revoked, provided this was done inyour presence, with your consent, and withthe intention of revoking your will.


9


So can I decide who gets what?

l You may lay down in your will whichpersons you choose to receive property oran asset and it is for you to decide the wayin which your estate will be divided up.However, over and above this, the lawensures that your surviving husband orwife receives a specific portion of yourestate called the ‘legal right share’. Thiswill be one half of your estate if there areno children and one-third of it if there are.

l Civil partners enjoy the same‘legal right share’ as spouses,which is one half of the estateif there are no children andone-third if there are children.A spouse or civil partner mayrenounce their right to a legalshare, in writing. A civil partneris defined in law as either of twopersons of the same sex whohave entered into a currentlyvalid, legally recognised civilpartnership or other legal relationshipaccepted under the Act. Civil partnersenjoy the same succession rights as spousesin that, once registered, civil partners willbe subject to automatic succession rightson the death of each other. Similar tomarried persons, their testamentaryfreedom will be then considerablyrestricted.

CivilPartnershipAct 2010


10


Part 15 ofthe CivilPartnershipAct 2010


l Unlike civil partners, cohabitants do nothave automatic succession law rights tothe estate of their deceased partners.Instead, there is a redress scheme thatallows a qualified cohabitant to apply forprovision from the estate of the deadperson. A ‘qualified cohabitant’ meansthat you have been cohabiting with theperson for five years or longer if there areno children) or for two years or longer ifyou have a child or children together.There is a six month time-limit under thelegislation within which a qualifiedcohabitant must make such an application.Further, in making provision for anapplicant under the redress scheme, thecourt cannot exceed a share greater thanwhat a spouse or civil partner would beentitled to either on intestacy or by way ofa legal right share. Where adeceased cohabitant wasmarried at the date of death,an application brought by acohabitant cannot affect thelegal right share of the spouse.

11


Section117 of theSuccessionAct 1965


12


What about providing for my children?

The law provides that some payments madeto a child during a testator’s life will beassumed to be made towards satisfying thatchild’s inheritance. This covers paymentsconsidered to be the ‘permanent provision’for a child.

If a payment made to a child during thetestator’s lifetime was not intended to satisfythe child’s inheritance, this should be declaredby will.

You should note that your children do nothave an automatic right to inherit from you.Therefore you should clearly provide for themin your will stating what share goes to whatchild.

However, if a child or his/her guardian feelsthat proper provision has not been made forhim/her in the will, he/she can apply to courtto have this matter considered. The court willthen decide whether or not the deceasedparent has failed to make proper provision forthat child in the will. Where the court believesthat the testator has failed in his or her moralduty to make proper provision for the child inaccordance with his or her means, whether byhis will or otherwise, the court may order thatproper and just provision be made for thechild out of the estate.


13


Note that a ‘child’ under section 117 can alsorefer to a person aged 18 years or more. If youare a child or adopted child of any age, youmay apply to the courts under section 117.

What are trustees?

If your children are very young, you may wishto put a bequest aside for them until theyreach a specific age. Likewise, you may wish tobequeath to a person who requires assistanceto manage his or her affairs. In this instance,you can appoint trustees who can hold thebequest in trust for the beneficiary until he orshe reaches the specified age, or on an on-going basis if needed. The trustees can benefitfrom the will also. They will have the powerto look after and pay out, in part or full, thebequest on behalf of the beneficiary, asspecified in the will. You will need to state inthe will what happens to any unused portionof inheritance should the beneficiary die.

A trust might also be used if the beneficiary isincapable of managing his or her affairs forwhatever reason.


14


What are guardians?

A guardian is the person or persons you nameto act as parent should you die before yourchildren reach the age of 18. This is not thesame role as a trustee, who manages the fundor inheritance of the child, but guardians canalso be trustees. Unless you have namedpersons to act as guardians in your will, thenon your death your relatives will have to applyto the court to have a guardian appointed tothe children. Therefore you are stronglyadvised to name guardians for your childrenin your will, taking into account issues likehow and where you would like to see themreared and what provisions might be madefor their education, for example.

How can I provide for my spouse or partner?

If you die leaving a will, otherwise known astestate, no matter what you put in your willyour wife/husband is legally entitled to

a) one-third of your estate, where youhave surviving children; or

b) half of your estate, if you do not haveany surviving children.

This is on top of any joint property you mayhave with your spouse, which should beconsidered also when you are making your will.


15


Where there are joint bank accounts, it mustbe noted that this is legally complex andinvolves matters such as the terms of the bankcontract, what exactly you and your jointholder intended when you set up the account,and how much you each contributed to theaccount. It is especially contentious where thejoint account holder is not your spouse or child.It is therefore very important that you leavespecific written instructions in your will and tothe other joint account holder as to who willinherit your share of a joint account, takinginto account the issues mentioned above.

What about my ex-partner?

You can reduce conflict over entitlements afteryour death by specifying in your will whatprovisions are to be made for any ex-partners.

l If you are divorced, the terms of the courtorder will determine any claimsfrom your ex-spouse. This isbecause although divorce'extinguishes' or removesinheritance rights, provisionmay be made for futuresupports to a spouse fromyour estate at the time ofdivorce in the court order.

l Legal separation or judicial separationdoes not extinguish succession rights

CivilPartnershipand CertainRights andObligationsofCohabitantsAct 2010


16


Relative surviving

Share

Spouse/civil partner and children

Spouse/civil partner take two-thirds and children take the remainder

Spouse/civil partner and no children

Spouse/civil partner takes whole estate

Children and no spouse/civil partner

Children take whole estate

Father, mother, brother and sisters

Each parent takes one half

Parent, brothers and sisters

Parent takes whole estate

Brothers and sisters

All take in equal shares.

Nephews and nieces

All take in equal shares


automatically, but may do depending onthe terms of the separation agreement orjudicial separation – you will have to investi -gate this when you are making the will.

Joint properties

It is also important to note whether the jointproperty is a joint tenancy (where thesurviving party will automatically inherit onyour death) or a tenancy in common (thesurviving partner does not have any automaticright to your share and you can bequeath it toany beneficiary/beneficiaries in your will).

Intestacy

Where a person has not made awill or the will they have made isfound to be invalid, that person issaid to have died intestate. In thiscase, his or her property isdistributed according to the law ofintestacy laid down in theSuccession Act 1965. Where some ofthose who would have inheritedhave died before the testator, theirchildren may be entitled to share inthe estate.

Since 2011, the law has changed tomake provision for civil partners inrelation to their legal right share in the eventof intestate succession. Part 8 of the Civil

17


Finance Act2010


18


Partnership Act 2010 provides that onintestacy, a surviving civil partner is entitled,as a right, to the same share as a survivingspouse; in other words, to two-thirds of theestate where there are children and to theentire estate where there are no children.

Will the beneficiaries have to pay tax?

Beneficiaries may have to pay CapitalAcquisitions Tax (CAT) if the amount of thebenefit - combined with any other benefitpreviously taken – is over a certain threshold.The thresholds vary depending on what thefamily relationship is with the dead person.Inheritances from parent to child and usuallyfrom child to parent have a higher thresholdthan those between other relatives. Spousesor civil partners are exempt from inheritancetax. Inheritances from distant relatives or non-


19


relatives have alowerthreshold.

Deadlines:Any personwho inherits onthe death ofanother personis legallyresponsible forpaying his/herCapitalAcquisitionsTax before therelevantdeadline.(However, ifthe person whogets a benefit isliving outsidethe state, thenthe executor /administratoror his/hersolicitor mustact as agent indealing withthe taxliability.) Therelevantpayment dateis either 31

YEAR

Group A

Group B

Group C

(Son/Daughter)*

(Parent**/Brother/Sister/Niece/

(Relationship other than

(after indexation)

Nephew/Grandchild)

at A/B)

(after indexation)

(after indexation)

On or after

06/12/2012

€225,000

€30,150

€15,075

*Includes children of civil partners

**In certain circumstances a parent taking an inheritance from a child can qualify for Group A threshold.

These thresholds change regularly and you can find up-to-date figures online at http://bit.ly/cat_thresholds.


20


October of the same year where theinheritance is received between 1 January and31 August, or 31 October of the followingyear where it is received between 1September and 31 December.


If you miss the deadline for paying your tax,you will have to pay interest on the amountowed starting from the valuation date. Notethat any payments you then make will first gotowards paying off the interest, before thetax you actually owe.

Valuation date: The valuation date is thedate on which the market value of the assetbeing inherited is calculated. This may be thedate of death, the date of grant of probate orthe date of transfer to the beneficiary,depending on the circumstances. See more athttp://www.revenue.ie/en/tax/cat/guide/valuation-date.html

Tax rates: The standard rate of tax is 33% inrespect of gifts and inheritances taken on orafter 6 December 2012.

21



22


Are there any exemptions to CAT?

The tax exemption of Dwelling-House Reliefmeans that a person who receives a gift orinheritance of a dwelling house will not haveto pay Capital Acquisitions Tax on it, providedthat:

l He/she has lived in that house for threeyears prior to the date of thegift/inheritance.

l After the date of the gift/inheritance,he/she is not beneficially entitled, in wholeor in part, to any other dwelling house,does not own or co-own another house.

l At the date of the gift/inheritance of thathouse, the person continues to live therefor a period of 6 years, unless they are 55years or over.

Further Information

Questions about inheritance tax and probatemay be made by emailing [email protected] by phoning the Revenue’s taxpayerinformation unit on LoCall 1890 201104.

You may also find out about thresholds forCAT which is levied on gifts and inheritanceson the Revenue Office’s websitewww.revenue.ie

Can I get legal aid to help make my will?


Notes

__________________________________________

__________________________________________

__________________________________________

__________________________________________

__________________________________________

__________________________________________

__________________________________________

__________________________________________

__________________________________________

__________________________________________

__________________________________________

__________________________________________

__________________________________________

__________________________________________

__________________________________________

__________________________________________

__________________________________________

__________________________________________

23



FLAC Mission Statement

FLAC (Free Legal Advice Centres) is a human rightsorganisation which exists to promote

equal access to justice for all.

While every effort has been made to ensure theaccuracy of this leaflet, it is provided for generallegal information only and is not intended as asubstitute for legal advice. The information itcontains is correct as of date of publication. FLACdoes not accept any legal liability for the contentsof this leaflet. People with specific legal problemsshould consult a solicitor.

FLAC is grateful to John Costello, solicitor, for hishelp in updating and revising this leaflet.

FLAC offers free, confidential basic legal informationvia its lo-call telephone information line at 1890350 250 and one-to-one legal advice through itsnetwork of voluntary advice centres countrywide –www.flac.ie/help

This publication was supportedand part-funded by the Citizens Information Board

© FLAC – Free Legal Advice Centres, July 2014

LoCall: 1890 350 250 | www.flac.ie

@flacireland fb.me/flacireland

Designed and printed by Printwell Design

www.printwell.ie


wills intestacy

Documents

hisher presence

testator person

intestacyflac legal

legal requirements

end bythe testator

heshe ismaking

legal ageof marriage

tes tacyhow