a will is important to ensure you have certainty over the disposal of
your wealth and assets when you die. It provides your loved ones with
clarity as to what your last wishes are at a time of grief. Critically,
it allows your assets to pass to your beneficiaries in an orderly and
timely manner avoiding disputes and arguments. Having a will is very
important for unmarried persons who wish to pass on their assets to
their partner on death. This applies to both heterosexual and same sex
couples. Without a valid will the law of intestacy passes a deceased's
assets to the next of kin not to unmarried partners.
If you have not made a will, your assets and wealth on death passes
according to the laws of intestacy. As a result, it can often be the
case that the persons you wish to inherit, are not regarded by law as
automatic beneficiaries and in fact do not inherit.
For married couples, if one spouse does not have a will, it is not
automatically the right of the surviving spouse to inherit all of the
For unmarried persons with young children, the benefit of having a will
is that you can nominate guardians and have specific guardianship
arrangements for your children, on your death. This gives certainty and
peace of mind that your children will be looked after according to your
wishes after your death.
Making a will
A person who makes a will is known as the testator. Making a will
avoids uncertainty, delay and dispute after you die. You can make
specific bequests of property, shares, money, assets to named
individuals. Alternatively, gifts can be made and the remainder of the
assets (the residue) can be left to one or a number of specified
individuals. You can also make certain charitable legacies and gifts to
benefit charities on your death.
To make a valid will, the document must be by law:
- Made in writing
- Signed by the person making the will (the testator)
- There must be two witnesses to attest the testator's signature and to the correct execution of the will
- The beneficiaries must not witness the will. If a beneficiary
witnesses the signing of the will, by law that person loses whatever
gifts or bequests he is entitled to under the will.
Capital Acquisitions Tax
This form of Inheritance Tax may be payable on a deceased's estate on
death above a certain threshold, depending on the nature of the
relationship betweem the person giving the benefit and the person
receiving the benefit. Land, property, bank
accounts, personal belongings, and insurance policies are all
reckonable in calculating the value of the estate. Capital Acquisitions
tax is based at 33% of the value of the gift over the relevant
threshold. Capital Acquisitions Tax is not payable on assets passing
between Husband and Wife or between civil partners. With assets which
have a high monetary value, we would recommend that you seek
professional taxation advice where appropriate.
Can a will be revoked?
Yes. If you have made an existing will, it can be revoked in a number
of circumstances. Marriage revokes an earlier will, unless that will
was made in contemplation of marriage. Divorce can also change the
effect of a person's will, as the former spouse is legally excluded
from benefitting under the will. Making a subsequent will has the
effect of revoking an earlier one. Also, where a person intentionally
destroys an existing will, this can have the effect of revoking the
Who is responsible for managing and running my affairs when I die?
An executor named in a person's will acts as the deceased's
representative with responsibility for gathering in the assets of the
estate, and distributing the assets to those entitled under the will.
The executor is also responsible for paying whatever debts, duties and
taxes are liable under the will. The instrument that gives the executor
legal authority to act is known as the Grant of Probate, which is taken
out when the testator dies. It is normal to name at least two executors
who can act on your behalf, should one die or be incapacitated. An
executor can under law refuse to act and resign.
What is the law in relation to children?
Children cannot inherit under a will until they reach the age of
eighteen. Children includes illegitimate and adopted children.
Stepchildren are not regarded under law as natural children and will
not inherit unless you specify otherwise. If you wish children to
derive the benefit from a gift under your will, you must appoint
trustees who will manage the asset on the child's behalf until they are
legally entitled to inherit. If you leave assets to a child and that
child dies before you leaving children of his own (your grandchildren)
then these children will take the share jointly that their parent would
have received had they survived.
What is the Residue?
The Residue of an estate is the remainder of the deceased's assets and
wealth which is left after taxes, dues and duties are paid on the
estate, and after specific bequests are dealt with. Often it composes
the bulk or majority of a person's assets. The residue can be gifted to
one person or to a number of persons jointly or in such shares as the
testator shall determine. If a specific gift or bequest fails, for
instance because the intended recipient has died, the gift becomes part
of the residue. This is one of the most important clauses in the will
as the residue can determine who the main beneficiary under the will is.
Bequests and Legacies
Many years ago the law regarded bequests as gifts of specific items eg.
jewellery and legacies as gifts of money. Nowadays, both these are
regarded as gifts the testator wishes to leave under his will. Bequests
and legacies can be general in nature eg. a sum of €5,000, or they can
be specific eg. a particular gold bracelet.
Guardianship of Children
A guardian is someone who has legal responsibility for the health and
welfare of a child. Married parents have natural guardianship rights
over their children. It is important if you have young children to make
specific provision as to who will assume the responsibility of looking
after your children when you die. If a married parent is still alive,
they will assume guardianship. However, if no natural parent survices,
the nominated guardian will care for the child. It is cruciallly
important for unmarried parents to have specific guardianship requests
in their wills to provide certainty and continuity in the care of their
You can nominate people who will benefit from your estate in the event
that all the stated beneficiaries fail to survive you. This prevents
the will from failing as the division of the proceeds of your estate
according to the rules of intestacy.
Trustees are the people with legal responsibility for managing and
maintaining the proceeds of a person's estate where gifts are left to a
minor or incapacitated person who cannot legally inherit. Children
under the age of eighteen cannot inherit property or money under a will
and so nominated trustees manage those funds on their behalf until they
are legally entitled to inherit. Trustees have powers to invest monies
in certain investments and have the ability to pay out of the trust
fund in certain situations for example to use money to pay for the
education of the child. Typically, the executors in a will will also
act as trustees.
Same Sex Partnerships (Civil Partnerships) and Same Sex Marriage
Under recent law in Ireland, persons of the same sex are entitled to marry and leave their assets to their spouse.
Registered civil partnerships are legally recognised as having the same
validity as marriage. Therefore, civil partners can leave their assets
to their partners in the same manner as married persons.
A tesator is a person who makes a will.
Do I need a Solicitor to make a Will?
The short answer is no. The vast majority of straightforward wills can
be legally created without the need for a legal advisor.
irish-wills.com provides a service that is cost effective allowing you
to create a valid will in simple steps in your own time. Our service is
run by a practising solicitor. We do recommend that in large estates
where Capital Acquisitions tax isuses arise, you do seek financial
advice prior to the making of your will.
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