Here’s a very sobering fact – only 30% of Irish people have a will, according to a survey conducted by Amárach Research on behalf of My Legacy.
This is bad news. Not having a will puts your loved ones at risk and also leaves an awful mess for your family to clean up after your passing. It doesn’t do you any favours either as your wishes may not be considered if you die without a will.
We understand that people shy away from dealing with topics relating to death, but we consider a will to be a document for a living person and we encourage people to take the same approach.
The reasons are simple.
Creating a will allows you to:
- Express your wishes – without a will your estate will be divided according to intestacy laws and not what you desire
- Provide for those you chose
- Protect your children
- Lessen inheritance tax
- Reduce the chance of your estate being contested
Regardless of the size of your estate, creating a will can be a simple process when you work with a solicitor who specialises in wills, probates and estate management.
In this post, we cover everything you need to know about making a will.
What is a will?
A will is a legal document that lets you express how you want your property, assets and keepsakes to be shared on your death. The person writing the will is called the “testator” or “testatrix”.
You can make as many wills as you like throughout your life but the only one that will be valid on your death will be the most recent one you made prior to your death. All wills you created before this once will not have any legal standing.
In Ireland, for a will to be valid, you must:
- Be over 18 years old or else married (or married in the past)
- Be of a sound mind
- The will must be in writing
- You must sign the will in front of at least two witnesses
- You must sign your will at the end of the document
What should a will contain?
Although there isn’t one standard will template in Ireland, a last will and testament should contain these ten basic elements:
- Your name and address
- A clause to revoke (cancel) all your previous wills
- The names of your executors (executors are people you trust and appoint to work with your solicitor to carry out your wishes)
- A list of your money and goods and the people you want to inherit these items
- A list of your property (or properties) and the beneficiaries you leave it to (you may also include instructions for the house to be sold and the money to be shared among your heirs)
- A clause to deal with any property or item not mentioned in your will (this is called a residuary clause)
- The date
- Your signature
- The signatures of your two witnesses
- An attestation clause (this clause says that your will has been created in a manner that meets the legal requirements)
What is the difference between a legacy and a devise in a will?
Legal language in a will often speaks of a legacy or devise.
A legacy is a piece of personal property, like a piece of jewellery, which you want to leave to loved one. A devise is a real property that you want to leave to a loved one.
There are also different types of legacies:
- A general legacy – this is a gift you can leave that will come out of your estate once all your debts are paid, any tax you owe is settled and all your specific legacies are taken into account
- A specific legacy – a specific gift you want to leave to someone, such as a vehicle
- A demonstrative legacy – a combination of both a general and specific legacy
- A conditional legacy – this legacy has a condition that goes with it and the heir has to fulfil that condition to receive the gift
- An abated legacy – this happens when there is not enough in your estate to cover your debts and liabilities
- An adeemed legacy – if you give away an item that you have listed in your will during your lifetime, the legacy is considered adeemed
- A charitable legacy – you must clearly identify the charity you wish your legacy to go to
Avoid these mistakes when making a will
- Marriage revokes a will but divorce doesn’t – if you get divorced and your beneficiaries change make sure you create a new will
- Don’t forget any wills you may have created in other countries – a revocation clause revokes all your previous wills, your foreign wills will be revoked too and this may not be what you want
- Keep your will safe – if your will is destroyed it will cause a problem
Good ideas to include in your will
- Name more than one executor
- Don’t name an alternative executor as this causes confusion (say “I appoint Catherine and James” rather than “I appoint Catherine or James”)
- Use a solicitor to draft your will
If there are young children named in your estate, it is advisable to:
- Appoint trustees and guardians
- Establish a trust out of your estate
- Provide additional powers for your executors and trustees
What happens if one of your beneficiaries dies before you?
The need for solicitor to write your will with you becomes clear when you think of all the different scenarios that could arise. Professional advice pays great dividends in protecting your wishes no matter how circumstances might change from when you wrote your will to when your will comes into play.
Doctrine of lapse gives us a perfect example of this possibility. If one of your beneficiaries passes away before you do, the legacy you left to that person will be treated as though you died intestate (without a will) unless you have included a residuary clause in the will.
There are exceptions to this rule and they include the following:
- Gifts left to children
- Gifts left to fulfil a legal or moral duty
- Gifts left on trust for someone else
- A will that accounts for the possibility of a beneficiary predeceasing you
Whether your estate is large or small, creating a will helps you plan what happens to your possessions and how your finances and property can take care of your family on your passing.
We’re always willing to sit down and discuss your will with you in a confidential and sensitive manner. Don’t be one of the 70% of Irish people who don’t have a will – the stress it causes can so easily be avoided by working with us to create a will that expresses your wishes.
28 October 2016