By Mark Cassidy, Solicitor.
As a solicitor, one of the things I hear most frequently from clients is the statement “I must get around to making my will”. It’s rarely said with any enthusiasm and is usually followed by a period of putting it on the long finger before an appointment is actually made. This is a natural human behaviour of course. Nobody likes contemplating their own mortality and with so many things competing for our time and attention these days it can be all too easy to put off a task which may appear both unpleasant and not immediately urgent. The reality however is that making your will is one of the most important things you’ll ever do. It allows you to determine what happens your property and personal belongings in the event of your death. It enables you to make provision for your loved ones as you see fit (with some notable exceptions) and it also allows you to choose the people you trust the most to oversee the distribution of your worldly goods when you finally pass on. In short, puts you in control.
In the absence of a will, you lose that control. A person who dies without a will is described by the law as having died intestate and the assets of the deceased are distributed according to a set of rules known as the rules of Intestacy. These rules determine the order of succession for your assets, in other words they set out who is in line to inherit your estate, in what priority and in what shares. This usually starts with the next of kin of a deceased, so for example, if one is survived by a spouse or registered civil partner and no children the spouse or registered civil partner will take the entire estate. If there are children and no spouse or registered civil partner it is the children who will take the entire estate between them. If the deceased is survived by a spouse or registered civil partner and children the spouse or registered civil partner will take two-thirds of the estate and one-third will go to the children. The rules go on to anticipate all possible circumstances of the deceased and they identify the successors in each case.
The obvious difficulty with having no will is that your wishes are not taken into account in distributing your estate as there is no record as to what those wishes actually are. This can result in unfair outcomes for those loved ones who are left behind. Take for example a couple who have been in a committed relationship for many years but have not married. In this situation when one of the partners dies, the surviving partner will not inherit from their estate in the absence of a will. Rather the rules of Intestacy will pass the estate of the deceased to his or her next of kin. This can have profound financial consequences, perhaps even hardship for the surviving partner if he or she had been not financially independent of their deceased partner. There is some financial relief available for a surviving partner who cohabited with their partner prior to the partner’s death, but this requires the surviving partner to go to Court to seek provision out of the deceased’s estate. In that case it is up to the Court determine how much financial provision should actually be made.
A will is also vital if you have a child, or other family member for whom you may wish to make special provision in your will. That child or family member may have been particularly caring and attentive towards you during their lifetime, and you might want to recognise that fact and reward them by leaving a substantial gift in your will. Perhaps the child or family member has a physical or intellectual disability for which you would like to make special provisions or arrangements. In either of these cases, the absence of a will setting out the deceased’s wishes will mean that the child or family member in question will be treated strictly in accordance with the rules of intestacy and will receive no additional consideration or benefit. In short, the rules of intestacy will be applied in a cut and dried fashion with no consideration given to individual circumstances. The administrator of your estate will have no discretion in applying those rules.
When setting about making your will, you must first of all consider what assets are actually comprised in your estate – put simply what do you actually own? You might think that this should be obvious, but it is not always so straight forward. Married couples often assume that their family home is in joint names and will therefore pass automatically to the surviving spouse without the need for a will. If the property is in joint names this is correct – the surviving spouse takes the home, but what if the home is not in joint names? If there is any doubt about this the title deeds should be checked to make sure of the position. The same applies to bank accounts although in most cases people are generally aware which accounts are in their sole name and which are held jointly.
Another matter which occurs frequently is when one gives instructions regarding an account held at a credit union. The issue here is that the Credit Union Act, 1997 allows a credit union member to nominate a person of their choice in respect of the account. On the death of the account holder the nominee becomes automatically entitled to the funds in the account up to a certain financial limited which is currently €27,000 (September 2024). If you have a credit union account and have made such a nomination, the first €27,000 falls outside of your estate and cannot be dealt with in your will. If you happen to have €28,000 in a nominated account, the €27,000 will go to your nominee and the balance of €1,000 will be dealt with under your will. Therefore, it is important to be aware if there is a nomination on a credit union account when making your will and if you’re not sure you really should check this with your credit union. Also, it is important to note that a nomination on a credit union account is invalidated by a subsequent marriage.
Apart from death the other certainty in life is tax and making a will allows you to ensure that the distribution of your estate is done in the most tax efficient way possible. There are no taxes between spouses at present, but every other potential beneficiary will have a sum which they can inherit tax free which is known as a tax threshold after which they will incur tax, currently at 33% on the balance. At the time of writing this article (September 2024), the threshold for a child inheriting from a parent is reasonably generous and currently stands at a lifetime exemption of €335,000 but the thresholds enjoyed by other potential beneficiaries are substantially less. For example, one can only receive €32,500.00 from siblings before incurring tax at 33% on the balance. Making a will allows you to consider the possible tax implications for your beneficiaries and to tailor your will to be as tax efficient as possible. Your solicitor will be in a position to advise you on the current tax thresholds and give you some idea as to what tax if any your beneficiaries will have to pay on receiving their inheritance based on the tax rules in place at the time.
Finally, when you do get round to making your will, I would strongly recommend that you instruct a solicitor to draft the will for you. I have heard of home-made wills and Do It Yourself kits to assist people in making their own wills but in reality, the advice and guidance of a trusted legal professional is indispensable when making your will. Also, most solicitors offer this service at very reasonable rates which represent excellent value for money. Not only will your solicitor carry out the drafting of the will which itself can be quite technical but he or she will also be in a position to discuss any concerns you have regarding your will and give you sound, impartial advice based on years of experience.
Once the will is made you can rest assured that you have left your affairs in order for those coming after you. You can also change your will at any time up to your death provided you are of sound mind.
Finally, on a lighter note, I will leave you with what is often claimed to be the shortest ever will.
“Being of sound mind, I spent all my money.”
© Mark Cassidy 2024.
The views contained in this article do not constitute legal or professional advice and should not be considered to be such or relied or acted upon in that regard. If you need legal or other professional advice on any issue dealt with in this article you should consult your solicitor or other relevant professional advisor.
