Tipp FM Legal Slot – 23rd October 2012
John M. Lynch on Wills Part III[soundcloud id=’167067726′]
What is a will?
- A Will is a legal document detailing how someone’s possessions should be divided after their death.
In other words a will is a letter of wishes or directions for family and friends as to how divide property after a person’s death.
- The person making a Will is called a testator.
- A testator may change or revoke a Will at any time.
In fact I would recommend that a person regularly review their will and I will discuss later on how you might do this.
- A Will must be signed and witnessed by two people otherwise it is not valid. Once it is signed properly and witnessed it becomes a legal document.
There is no requirement to register the will anywhere once it is signed.
- It should be kept safely because it must be proven officially after death.
In most cases people will leave the original will with their Solicitor for safekeeping. If you do this it is advisable to tell the Executor where the original will is kept. You can if you wish take the will away once it is signed and if you do it should be kept in a very safe place maybe a safe at home or in a safety deposit box. Again in this case let the executor know where you have put the original will.
- A will only takes effect after the death of the author.
This means that the fact that a person has made a will does not prevent them from dealing with your property after the will is made. I’ll give you a quick example, a person came in to me to make a will and in doing so left all the money in a particular bank account to a daughter. At a later stage this person decided that they needed that money for some purpose or another and they were concerned that it could not be spent because it had been left in the will to a daughter. This is not the case – this person is entitled to do what they want with the money during their lifetime. And the same applies for any other property whether it be a car, a house or shares.
Why should someone make a will?
- The author of the will decides what is to happen to THEIR property after their death. If you do not make a Will, the law dictates that your property is distributed amongst your closest relatives.
- Many people like to make gifts of money or of particular items such as furniture, clothing, or personal belongings to friends or relatives. These can be included in your Will, no matter how big or small.
- You can choose who is to carry out your wishes by appointing EXECUTORS.
The executor does all the paperwork necessary to transfer the property to the people named in the will and liaises with the Solicitor to complete all the legal formalities. The law says that you only need to name one executor but in most cases people would appoint two executors. It is recommended to a person who is going about making their will that they ask the person whom they are considering appointing would they be willing to do the job.
A Letter of Wishes can be written for the Executor – does not have legal effect as such but gives direction to the Executor in the event of certain specified circumstances arising. e.g. child attending college.
- It makes it easier for friends and family if their loved one leaves a will and it is usually cheaper in the long run.
Who should make a will?
- Everyone should make a Will.
- Making a Will is not just for wealthy people.
A Will is a personal matter. It is a matter for every individual to decide for themselves who to leave their property to. There is no obligation for anyone to disclose the fact that they have made a will or indeed what the contents of their will is. It is up to the individuals themselves to decide whether or not they want to discuss the contents of the will with family members. It is however advisable to inform the executor the whereabouts of the will.
- Everyone’s’ affairs are better ordered if a Will is made. It gives people peace of mind to know that they have organised their affairs.
- A Will should be made by anybody with assets, children or other responsibilities.
When should a will be made?
It is appropriate, very often, on reaching certain stages in life, such as the following:
- becoming the owner of property/cash
- getting married
- going abroad
- getting divorced or separated
- buying a house
- having children
- Inheriting property (or winning the Lottery!)
- retiring, getting older or suffering illness
- NOW! As they say there is no time like the present to do things
How much time does it take to make a Will?
- Making a will usually requires a minimum two meetings with a solicitor.
- The first meeting with a solicitor will involve the solicitor taking all necessary details from their client.
- Solicitors encourage their clients to return to complete the process some days later. At this stage the solicitor will have drawn up necessary papers and arranged for the will to be witnessed and signed by their client.
- If there is any reason e.g. travel, illness or otherwise for the will to be signed as a matter of urgency the client should inform their solicitor at the first meeting.
How much does the process cost?
Costs for making a Will depend on the complexity of the Will and range from €75 to €6,000/€7,000.
What happens to my property if I own it jointly with another person?
1. Joint tenancy
If a property is owned by two or more people as joint tenants and one of the joint tenants passes away then the share in the property that the deceased person owns passes automatically to the other owners. This is what we call the right of survivorship.
A very common example of this is the family home shared by a husband and wife. If the property is in the joint names of the husband and wife and they own it as joint tenants as opposed to tenants in common, if either of them pass away the surviving spouse becomes full owner.
It is advisable for couples to check that the family home is in joint names. One of the common occurrences we see is the house being registered in the name of the husband – this was common practice thirty years ago- and if that husband dies without making a will (intestate) the family would be entitled to the property in the following shares:
Surviving wife: 2/3
Children: 1/3 and if there is more than one child they divide that one third between them. So you can imagine the complications that can arise.
2. Tenancy in common
If two or more people own a property as tenants in common you don’t have a right of survivorship. If a person passes away and they own a share in a property as a tenant in common the other owner or owners do not inherit the share that the deceased owned. It will be inherited by his nearest next of kin if he died intestate and if there is a will the share in the property will pass to whatever beneficiaries are named in the Will.
The other possibility of course is if there is a co – ownership agreement (which we discussed a number of weeks ago) the surviving co-owners may have first option to buy the property from the executors. If people have bought property as tenants in common they should make sure that they have a co-ownership agreement which will regulate what happens if one or more of the co-owners die.
If a person is making a will and they are leaving their house to somebody, do the contents of the house automatically go with it?
Usually the testator, which is the legal term for the person making the Will, will specify if the contents are to be inherited with the house. It is a personal choice, some people will want to leave the house and contents to the same person and others will specify that the contents or personal effects are to go to someone else or be divided between family members.
What happens if a person makes a will leaving their house to somebody and they subsequently sell that house?
The first point is that when a person makes a will that that does not prevent them from dealing with their assets, whether it is a house or money or shares that you are talking about. So to answer the question this bequest is said to lapse – the person named in the will does not get anything.
What makes a will valid?
- The author must be over 18.
- The will must be in writing.
- The author must be of sound mind at the time.
- The author must sign or mark the will in the presence of two witnesses.
- The two witnesses must sign the will in the author’s presence.
- The authors’ two witnesses cannot be people who will gain or someone whose spouse will gain from the will and they must be present with the author at the same time for their attestation to be valid. (The role of the executor is to carry out the instructions in the will and unlike the witnesses they may or may not gain from the will, again this is a personal decision for the person making the will. The executor however is not entitled to receive payment for his role but will be reimbursed for out of pocket expenses).
- The witnesses must see the author sign the will but they do not have to see what is written in it.
- The signature or mark must be at the end of the will.
What happens if someone dies without a will or if a will is deemed invalid?
- As we said earlier a person who dies without a will is said to have died ‘intestate’.
- If someone dies intestate, it means the person’s estate, or everything that they own, is distributed in accordance with the law by an administrator.
- In these cases, debts and expenses are firstly deducted, then the estate is distributed as follows if you are survived by:
- A spouse but no children (or grandchildren): your spouse gets the entire estate.
- A spouse and children: your spouse gets two-thirds of your estate and the remaining one-third is divided equally among your children. If one of your children has died, that share goes to his/her children.
- Children, but no spouse: your estate is divided equally among your children (or their children).
- Parents, but no spouse or children: your estate is divided equally between your parents or given entirely to one parent if only one survives.
- Brothers and sisters only: your estate is shared equally among them, with the children of a deceased brother or sister taking his/her share.
- Nieces and nephews only: your estate is divided equally among those surviving.
- Other relatives only: your estate is divided equally between the nearest equal relationship.
- In the absence of a will and of any relatives the estate goes to the state – but this is a very rare occurrence.
Can wills be changed or updated?
A Will can be changed and updated as often as one chooses
A person can make a Will today and change it as often as they wish afterwards. It is important to review the Will regularly.
A Will can be revoked in its entirety and an entirely new Will prepared
Specific parts of the Will can be altered by making what is called a codicil – which is an amendment to the Will without altering or reviewing the entire Will.
It is recommended that people review their Wills regularly.
Can a Will be challenged?
If the author of a will is married and excludes their spouse from the will the spouse is entitled to a ‘legal right share’. That means that a spouse cannot be dis-inherited.
A spouse who has been excluded from a will is entitled to half the estate if there are no children. This share takes priority over all other provisions.
A spouse who has been excluded from a will is entitled to one-third of the estate if there are children. This share takes priority over all other provisions.
Children however, who have been excluded from a will do not have the same entitlements – their circumstances dictate their entitlements.
There are a number of other situations where wills can be challenged.