Many clients of mine have not made a Will, despite they appreciate that they really should. The purpose of this blog is to provide a brief outline of why one should make a Will, what happens if a Will is not made, and to highlight some other considerations when considering estate planning. It is not intended to be complete, and you should ensure you enlist professional estate planning advice, particular to your own situation.
Making a Will is not a particularly difficult or expensive exercise, but it provides a number of benefits;
- Firstly, and most obviously, a Will can help ensure that those who you wish to benefit from your estate, actually do,
- Secondly, the process of making a Will compels us to evaluate our assets and liabilities, which is good financial practice,
- Through designing a Will, it is possible that you become aware of tax issues that you may inadvertently leave behind to loved ones, and you can then consider strategies to reduce these exposures,
- Finally, making a Will can reduce / eliminate potential disharmony between family members.
I don’t have a Will yet, what happens if I die before making one?
A person who dies without making a Will, has died ‘intestate’. Dying intestate means that everything you own is distributed in accordance with the law. The relevant law is contained in the Succession Rights Act, 1965, and the distribution is outlined below;
If you are survived by:
- A spouse/civil partner but no children (or grandchildren): your spouse/civil partner gets the entire estate.
- A spouse/civil partner and children: your spouse/civil partner gets two-thirds of your estate and the remaining one-third is divided equally among your children. If one of your children has died, that share goes to his/her children.
- Children, but no spouse/civil partner: your estate is divided equally among your children (or their children).
- Parents, but no spouse/civil partner or children: your estate is divided equally between your parents or given entirely to one parent if only one survives.
- Brothers and sisters only: your estate is shared equally among them, with the children of a deceased brother or sister taking his/her share.
- Nieces and nephews only: your estate is divided equally among those surviving.
- Other relatives only: your estate is divided equally between the nearest equal relationship.
- No relatives: your estate goes to the state.
It is important to realise that there are several requirements in order to ensure that the Will is valid. If you have a Will, but the Will is invalid, the distribution outlined above will apply. Although it is possible to make your own Will without consultation with a solicitor, my advice is to always consult a legal professional who is experienced in the area of Probate. It may be a bit more expensive, but it provides peace of mind that the Will is fit for purpose.
Legal Rights of Spouses, Civil Partners and Children when there is a valid Will
Your spouse/civil partner and children have certain automatic minimum rights to your estate. In particular the rights of a spouse or civil partner need to be acknowledged;
A spouse/civil partner is entitled to what is called a ‘legal right share’ of your estate. This legal right is ;
- Half of your estate if you do not have children
- One third of your estate if you have children
It is possible for a spouse/civil partner to give up their rights to your estate, but if they have not and they wish to claim their ‘legal right share’, they do not have to go to Court to get this share, as any Executor of the Will is obliged to grant this share where applicable.
Unlike a spouse/civil partner, children do not have any absolute right to inherit their parent's estate if the parent has made a Will. Children born inside or outside marriage and adopted children all have the same rights and there are no age restrictions.
However, a child may make an application to court if he/she feels that he/she has not been adequately provided for. It is important to seek legal advice before making such an application. An application must be made within 6 months of the taking out of a Grant of Representation. The court then has to decide if the parent has failed in his/her duty to the child in accordance with the needs of that child. Each case is considered individually, but it is important to remember that the legal right share of the spouse cannot be infringed in order to give the child a greater share of the estate. It can, however, reduce the entitlement of a civil partner.
Cohabiting Partners – Issues
Co-habiting partners have no automatic legal right to each other’s estate, although they may be able to apply for provision from an estate of a deceased cohabitant. Furthermore, as society changes and more and more people live together out of wedlock and have children, there is an increasing importance on tax and estate planning. This is because the cohabitant benefits from only the ‘stranger’ threshold in respect of tax free inheritance. This can result in a very significant tax bill being left behind for a cohabitant where a Will has been made and proceeds left to the Cohabitant. Such an outcome needs to be planned for and tax efficient strategies may need to be devised.
Joint Bank Accounts
Where joint bank accounts are opened with a spouse/civil partner or child, it is presumed that one party will be fully entitled to the money in the account when the other party dies. Disputes can arise, however, if someone, perhaps an elderly person or a person with a physical disability, opens a joint bank account with a relative or friend so that the relative or friend can manage his or her finances for him or her. This is because the owner's intention may or may not have been to benefit the relative or friend. A decision in such a case would depend on the intention of the people involved, the amount they each lodged into the account and the terms of their contract with the bank. It is advisable for people with joint accounts to make clear in their contract with their bank or in their will what their intentions are for the money in such accounts.
For further information, or to seek advice in relation to estate and tax planning, please don’t hesitate to contact Gilmore Insurance & Financial Services.