How to make a will that shall stand to you beyond the grave
How to make a will that shall stand to you beyond the grave
A will won’t be worth the paper it’s written on if it’s not made correctly
The pandemic has forced many of us to confront our own mortality – and to consider making a will – at a much earlier stage in life than we would have previously expected.
Despite any fears you have around the pandemic or your health, it is important that a will is not rushed and that you take the time to ensure your will is made correctly and that it stands to you.
Make a valid will
There are a number of rules which must be followed when making a will. The will must be in writing and signed and dated by two witnesses in your presence. These two witnesses – or their spouses and civil partners – cannot gain from your will. You must date and sign or mark a will and your two witnesses must see you do this.
“If these rules are not followed, the will could be declared invalid and the person could die intestate – as if they had not made a will,” said Michele O’Boyle, partner with O’Boyle Solicitors in Sligo.
The signing of a will, and other steps followed to ensure it is legally binding, is known as the execution of the will. “The proper execution of a will is as important as how you distribute your estate,” said O’Boyle. “People sometimes have their own homemade wills – and the huge difficulty here is that the will is often not properly executed.”
Hiring a solicitor should ensure that your will is done properly and it typically costs around €200 or less to get a solicitor to draw up a simple will, though costs vary. The more complicated the will and the more assets you own, the more expensive it will be. However, legal advice is crucial for complex wills.
Although probate fees do not come into play when you’re drawing up a will, if you want the solicitor drafting your will to administer your estate when you pass away, check what their probate fees are. Probate fees are the fees charged by solicitors to administer a deceased’s estate. Steer clear of solicitors where the probate fee is calculated based on a percentage of your total estate as this could add up to tens of thousands or more, depending on the value of your estate.
Instead, choose a good solicitor who will charge a reasonable flat-rate fee. It will ultimately be your survivors that deal with the probate fee but being shrewd here could preserve a good chunk of your estate.
Appoint executors
An executor is someone who will carry out the wishes in your will when you die – and you must appoint at least one executor.
“Have two executors – in case one passes away,” said Sharon McElligott, managing principal of Murphy McElligott Solicitors in Dublin. “Often when a husband and wife are making a will, each spouse appoints the other as executor.” The disadvantage of such an arrangement is that when one spouse passes way, the surviving spouse would not have an executor for their own will. Furthermore, both spouses could die at the same time.
Although an administrator is normally appointed when there is no executor, you may prefer that the wishes in your will are carried out by certain people. So appointing a number of executors is one way to ensure this happens.
Appoint trustees
For those with children or grandchildren under 18, or people with special needs who need to be provided for, trustees should be appointed. A trustee looks after the assets in your estate and should be given the powers to decide what maintenance and other payments should be made for the benefit of your children, grandchildren or other dependants.
Round up assets
Put together a list of your assets, their value, and where those assets are kept.
“Make a list of all your bank account numbers,” said O’Boyle. “If you have title deeds, specify where the title deeds are.”
Make a foreign will for any foreign property you have. “If there’s property abroad, it’s best to have a will which deals solely with that property in the country where it is located – so for example, have a Spanish will for a Spanish property,” said Patrick Moylan principal of O’Kelly Moylan Solicitors in Clare. “The Irish will should reflect that by saying it is only dealing with the Irish property.”
Divvy it out
Carefully think about – and set out – how you wish to divide your estate, who you wish to leave your assets to, and any special circumstances that apply – such as a child with a disability.
Explain in your will why you are leaving more to one child than another, or why you are excluding a child from your will – should this be the case. This should help prevent legal challenges to your will.
Catch all wealth
There may be property or assets which are not specifically dealt with in your will. For this reason, it’s important to put a residuary clause – a clause which outlines how such property or assets should be distributed – in your will.
“A residuary clause is a safety net which catches anything that is not covered by the specific bequests [something which is left to someone] in the will,” said Moylan.
Let us say for example that there are three assets in your estate: your family home, an investment property and a Lotto win. The winnings are not dealt with in your will because you won the money after you made your will – and you passed away before you had a chance to amend it. If the will specifically deals with the family home and the investment property – but not the Lotto win, and if there is no residuary clause, there will be a partial intestacy in respect of the win, according to Moylan.
This means that this portion of your estate (that is, the Lotto winnings) will be divided as if you had died intestate and so ultimately it will be the law that decides who inherits your Lotto winnings.
Be upfront
Give your solicitor all the information that she needs when drawing up your will – if you have hired one. “Give the names of all your children – including any non-marital children,” said O’Boyle.
“If you have children you have given a prior gift to during your life, that’s important information to have to hand. If you are separated and have decided to disinherit you spouse, bring that to the attention of the solicitor.”
Update your will
Update your will throughout your life – particularly if you have made one when young.
“As life goes on, circumstances change,” said Moylan. “If a person makes a will when they are young, they may marry after the will is made: marriage or civil partnership revokes [cancels] the [previous] will.”
Parents of young children should ensure their will outlines how their children will be cared for – and how they will be provided for.
Be sure your will reflects your wishes around any inheritance you have in mind for your children.
“You may have made a will 25 years ago where you left everything to your children equally,” said O’Boyle. “You may have decided to change that will now to reflect the fact that some of your children have got college education, whereas others haven’t.”
You may also wish to change your will to reduce or eliminate the tax bills.
“Taxation can often lead to a change in a will,” said Moylan.
“There are certain tax reliefs that will be available to certain children. For example, it may be more tax efficient to leave a farm to one child and the family home to another.”
Plan for unexpected
Don’t assume your loved ones will outlive you. Instead, include a clause in your will to cover the risk of a loved one dying before you do.
“If you provide in a will for adult children and if one dies before you do, that can lead to a lapse of the gift for that child – unless there’s some alternative arrangement put in place, such as leaving the gift to grandchildren,” added McElligott.
As we have all learnt so dearly in the pandemic, planning for the unexpected is always wise.
Until death or divorce do us part
Marriage & wills
In a marriage or civil partnership, the surviving spouse or civil partner has a legal right to a share of a spouse’s estate when he or she dies, regardless of what was outlined in the deceased’s will. This right is laid out under the Succession Act. So if you are married and have left all your belongings to charity in your will — and not left anything to your spouse, your spouse will still be able to inherit what he or she is entitled to by law from your estate. A spouse can however renounce their entitlement to their legal right share.
Splitting up
Be sure to update your will, or make a new will, after a separation or divorce. “Separation or divorce does not revoke a will and the contents of the will remain valid until the will is amended or revoked,” said Patrick Moylan of O’Kelly Moylan Solicitors. Although divorce removes a person’s legal right to a share of their former spouse’s estate, if that person was specifically left something by their former spouse in a will, he or she can still inherit that item — unless the former spouse has changed their will or made a new one. Furthermore, a separation doesn’t necessarily lead to a person losing their entitlement to a legal right share of their former spouse’s estate — and that person can still inherit something which was specifically left to them by their former spouse, unless the will has been changed.
“The law assumes that what you direct in your will is what you want to happen on your death,” said Moylan. “Separated or divorced parties may still wish to benefit one another after their deaths.” Note that if a divorced spouse remarries, any will previously made by them would be revoked.
Disinherited spouse
Ensure that any divorce or separation agreement prevents your former spouse from inheriting from your estate (if that is your wish). Otherwise, a divorced spouse could for example make an application to the courts seeking a share of the estate of a deceased divorced spouse or a deceased former civil partner. “A divorce should have a clause prohibiting such an application,” said Moylan.
In a separation, both parties remain married. “Usually a separation agreement will have a clause in it which extinguishes the other party’s rights under the Succession Act — including the legal right share to the other’s estate,” said Moylan. “Such a clause would not however prevent the other party from inheriting a specific bequest left to them in a will. This can lead to problems if a separation is done informally — such as where people have separated and been living apart for many years but no formal separation agreement is in place. If one spouse has made a will and left something to an estranged spouse, then the estranged spouse will still inherit the bequest — unless the will has been changed or revoked.”
Sunday Independent
January 2021
