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We have over ten years experience in drafting both simple and complex Wills, while providing transparent costs. We take care of the witnessing and storage of the Will.
Our fixed cost service for Making a Will – Couple
Our fixed cost service for Making a Will – Single Person
Download our Will guide and instruction form
Commonly a couple who own a property, hold the property jointly. This means that on the death of one spouse, the ownership of the property immediately passes to the surviving spouse. The death certificate is submitted to the Property Registration, who will remove the deceased person from the ownership of the property. All assets that are held jointly fall outside the scope of will.
A will cannot have effect over joint assets, as the title transfers on death to the surviving joint holder of the assets. This typically applies to property and bank accounts, held by couples.
If a property is registered in the sole name of one person, it might be worth considering transferring the property into joint names.
At least one Executor must be appointed in the Will. Usually, each spouse will appoint each other as the Executor of each other and gives everything to that spouse. Although frequently, all the assets will transfer automatically on death. This means that there would be no requirement for a Grant of Probate to administer the estate of the first spouse.
The Will usually continues, saying that on the death of the second spouse the estate is given to the children in equal shares. There is no legal obligation on parents to leave everything equally to children. However, this is very common. There is no obligation on parents to leave an inheritance to children.
The legislation requires parents to make “proper provisions” for their children, given a number of factors. This obligation can be satisfied by gifts given during the lifetime of the parents among other things. Each case is taken on its facts and there is no formula for determining when or if proper provisions made.
Commonly the Will does not list assets of the estate. It gives the estate to the children in equals share or other shares. This gives the Will flexibility as assets change frequently. If a Will stated that a Bank of Ireland account was going to one child and a house to another and then the house was sold and the proceeds of sale lodged to the Bank of Ireland account, after the Will was made, this would result in different bequests than the person intended.
Therefore it is often advisable to value assets and give shares of the estate to the beneficiaries. The estate is defined as all of the assets of the estate at the date of death. This includes assets that are due to the estate.
The Will should deal with the situation that a child may predecease the person making the Will. The normal rule is that if a person named in a Will dies before the person who made the Will, then the gift to them lapses. The beneficiary does not inherit the gift. This can be changed by a gift over clause in the Will.
It will also not apply if the person was a child of the person who made the Will. If a child dies before their parents and leaves a child alive at the date of the death of the person who made a Will, then the gift given to the predeceased child does not lapse. But it does not go to the grandchild. It goes by law to the estate of the deceased child.
If that predeceased child made a will, it will go under the terms of that Will and if not, then by Intestacy. If there is a gift over clause in the Will of the person, it will be directed to go the grandchild or another person they wish.
If you wish to make this kind of will please download this form. Each person makes a separate Will. The cost of each standard Will is €200.
Similar to the situations above. However, often when people bring their own grown up children to a new marriage later in life, the couple agree that they do not want to inherit from their new spouse’s estate. They decide to leave their estate between their own children only. They do not make provision for their new spouse or their spouses’ children. The law automatically vests one third of a married person’s estate, in the surviving’s spouse.
Even if a Will gives 100% to their children, 33% still vests by law in the spouse. This is called the Legal Right Share. In these situations, the spouse who is not taking the one third share, should sign a Deed of Renunciation of their entitlement to the Legal Right Share. This document must be signed in the presence of an independent solicitor. It is advisable to do this at the time the Will is made. It can be done by the surviving spouse after the death of the spouse, however.
If you wish to make this kind of will please download this form . Each person makes a separate Will. The cost of each standard Will starts from €200.
Independent legal advice costs €123.
Unlike spouses, cohabiting couples have no Legal Right Share. There is no entitlement to a one-third share of their partner’s estate. There is a right to claim relief from the estate of the deceased partner. There are few reported judgments on this legislation.
Each case will depend on its own facts when it comes to deciding if any payment or property should be given from the estate of a cohabitant to their surviving partner. It will be important to consider the tax consequences as inheritances between cohabitants have a tax free threshold of €16,250.
A cohabiting person with children will have an obligation to make “proper provision” for their children. The legislation refers to children, with no age limit. Often the property in which the couple resides is owned by one person.
If this person has children, then often the other non-owning partner is given a Right of Residence for their life in the property, in the Will of their partner. This is often an exclusive Right of Residence in the property, if the children of their partner are grown up and live elsewhere.
The Will then does on to give the property to the children absolutely, after the death of the surviving partner. This ensures the surviving partner has security in the property for their life.
If you wish to make this kind of will please download this form. Each person makes a separate Will. The cost of each standard Will starts from €200.
When making a Will, many clients who have a child with a physical or mental disability are concerned with putting the right structure in place. This usually involves setting up a Discretionary Trust. A Discretionary Trust gives Trustees absolute discretion about when, how, and to which children of the Trust they may appoint capital or income of the Trust.
The Discretionary Trust does not tie the hands of the Trustees and gives them the power to make decisions as they deem appropriate about when and how much money is appointed out of the Trust.
This is important because many of the supports and allowances available are means-tested e.g. disability allowance and medical card. Therefore the Trustee can ensure that the thresholds for qualifying for these resources are not breached. A charity which supports the child may also be named as beneficiary of the Trust. This allows payments to be made from the Trust to the charity, which may help reduce a possible Capital Acquisition Tax liability of the child.
Many people shy away from using Discretionary Trusts because of the potential liability to Discretionary Trust Tax. Currently, there is an initial 6% charge and an annual 1% levy thereafter. A rebate of 50% of the initial 6% levy is available if all the trust funds are distributed within five years of the applicable valuation date.
However, there is a full exemption available for Trusts set up in these circumstances under S 17 of the CATCA 2003, when certain conditions are fulfilled.
When a new valid Will is signed, it revokes the older Will. Usually, the older will is not destroyed. It is simply kept with the new Will. There is no requirement to bring an old Will in when making a new Will. Often it will be helpful to discuss why a new Will is being made and therefore the contents of the old Will should be reviewed and discussed.
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