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We have put together a guide to help you understand what you need to do throughout the Will making process. Click the link below to download.
When you have young children, you need to appoint at least one Executor, one Guardian and a minimum of two Trustees if you own a property.
A trust will be set up in the Will and you will need to think about what age you want the trust to end. When the trust ends, the assets are given to the children. Discretionary Trust Tax applies when the youngest member of the trust reaches the age of 21, so often it is advisable to end the trust when the youngest child is 20.
It is advisable for the mother to appoint the father as the guardian of the children in the event that the mother predeceases the father. The father may qualify as being the guardian but it is advisable to formally appoint him as guardian in the Will.
It will be important to consider the tax consequences as inheritances between cohabitants have a tax free threshold of €16,250. 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.
There are no requirements, generally, about the number of trustees that have been appointed in a trust document. The exception is when there is property in the trust, then two trustees must be appointed.
The general rule is that a trustee is only entitled to expenses. However, a will can make specific provisions for making payment to a trustee.
Once a trustee has accepted the office, he cannot disclaim, only retire. The trustee can retire according to the terms of trust, if there are remaining trustees, or a new trustees are substituted or if the beneficiaries consent. (all being over 18 of sound mind and absolutely entitled)
Generally when a trustee takes some action in relation to the trust, his acceptance of the position is presumed. The trustee does not have to give written acceptance of his position
In a will trust, when the same person is appointed executor and trustee and who accepts the executorship will automatically be presumed to have accepted the trusteeship. He cannot accept one and then disclaim the other.
Trustees can be removed from office by the courts or if all beneficiaries consent. . The first place to check is the actual trust instrument to see what it has provided for. The courts can also replace a trustee is he is proved incompetent and/or dishonest, or is unfit or incapable of acting of if he is convicted of an offence or made bankrupt. The overriding concern is the welfare of the beneficiaries.
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