This article first appeared in the Wicklow and Bray People.
While it’s not always pleasant to think about, it is really important to plan for what happens to your loved ones, after you pass away.
A key part of this is creating a will. Your will outlines what you want to happen to your possessions, including any money or property that you own, after you die. Any debts that you owe will be paid from your estate, and the remaining assets will be distributed to the people named in your will. An executor named in your will is responsible for carrying out your wishes.
When creating your will, you should consider the following steps:
- No matter what your circumstances are, it is important that you consult with your solicitor in relation to the drafting and execution of your will. This will ensure that you get proper advice and can make informed decisions regarding your estate and any tax implications.
- A will is only be considered valid if it is made in writing, by a person who is over 18 years of age (or has been married), and is of capacity to do so. The person must sign or mark the will, at the end of the document in the presence of two witnesses who must sign their names on it.
- It is important to be aware that when you die, your spouse or civil partner has a legal right to part of your estate - even when you have made a will. If you have made a will, your spouse or civil partner has a legal right to half of your estate, if you have no children. If you do have children, your spouse or civil partner is entitled to one-third of your estate. In certain circumstances, an unmarried cohabitant who is dependent on you may have a right to sue the estate for payment on your death.
- When you start thinking about drafting and executing your will, you should consider the extent of your assets. It is important that after your death your executors will be able to find details of all your assets and all relevant financial information and title documents. If you are in receipt of social welfare or nursing home supplements from the State, e.g. under the ‘Fair Deal Scheme’, you should ensure these details will be available to your executors. You should inform your solicitor when making your will so they can advise you fully on any legal or taxation implications.
- You should consider who you would like to benefit from your estate, bearing in mind the entitlements of your spouse mentioned above. You will also have to choose your executor, who will often be your spouse or another trusted family member.
- Your children are not automatically entitled to any part of your estate but they may apply to court if you fail in your moral duty to make proper provision for them, in accordance with your means, taking into account their position in life.
- If you have children under 18 years of age, your will should give directions for the care of those children and how they are to be provided for. It should be ensured that it is clearly stated who will have custody and guardianship, in the case of the deaths of both parents.
Creating a will removes uncertainty for your loved ones, in what is always a difficult time. If in doubt, contact your solicitor to start the process.
Article by: Barbara Lydon, Associate Solicitor at Augustus Cullen Law Solicitors, Wicklow.
23 October 2019