It is never an easy task to decide what happens to our assets after we die and whilst we all hear people talking about how important it is to make a will we still tend to put making a will on our "to-do" list and either never quite get around to it or else we created wills years ago that are no longer adequate or applicable to our circumstances.
A will is a legal document that allows you to express your wishes regarding the distribution of your property following your death. It also gives you an opportunity to consider how best to leave your assets so as to minimise the tax burden on your beneficiaries.
Why Make a Will?
There are many reasons for making a will, the biggest being that it allows you to decide, how you want your assets distributed following your death. This is particularly important if you are married or have children as you will be able to make provision for your loved ones.
If you die without making a will, then you have died intestate. You lose all control over how your assets are to be divided. The law determines how your estate will be distributed. The rules say that if you die leaving a spouse and children then your spouse is entitled to two-thirds of your estate and your children share the remaining one-third equally between them. This is a problem if your children are under the age of 18 because there are no testamentary guardians or Trustees appointed to look after their interests.
When making your will you appoint Executors who manage your affairs after your death, and Trustees (if your will requires a Trust to be set up). Most importantly however is that if your children are young your will allows you to appoint Guardians to care for them on a daily basis.
How to Make a Valid Will in Ireland
For a will be to be valid it must:
- be made by a person who is over the age of 18 years;
- be in writing;
- be made by a person who is of sound mind
- be made by them voluntarily and without pressure from any person;
- Be signed by the person in the presence of two witnesses. There are restrictions on who can act as witnesses e.g. beneficiaries under the will cannot witness.
- Include an attestation (signing) clause.
If the above requirements are not complied with, the will may be deemed to be invalid in which case the rules of intestacy will apply.
What Should I Do Next?
It is never too early to begin thinking about creating or updating your will.
It is very important to obtain proper legal and taxation advice in relation to your estate planning but the importance of having a valid will in place cannot be stressed enough.
If you have any further queries, please contact any of the following from our Wills, Probate & Estate Management group:
- Michele Caulfield, Senior Associate Solicitor
01 April 2014