Tipp FM Legal Slot – 8th October 2013
Orlagh Wafer on Wills & Best Will In The World Week
Mylegacy.ie’s Best Will in the World Week is taking place again this year nationwide and is running from 21st – 25th October. What is Best Will in the World Week?
We are taking part in the third annual Best Will in the World Week again this year, which runs from Monday, 21st October to Friday, 25th October.
The Best Will in the World Week campaign is run by MyLegacy.ie and we welcome listeners to meet with us for a will consultation at a reduced cost of €50 while also having the option of leaving a legacy to their choice of charity. The contribution they make to the charity is entirely optional, there is no minimum or maximum.
If anyone wishes to make a will for the first time or change an existing will now is the perfect time to do so at a reduced cost.
What percentage of people in Ireland have already made wills?
Recent research has shown that only 34% of adults in Ireland have made a will.
The research indicates that 82% of people over 65 years have a will whereas just 51% of people between 45 and 64 and 26% of those aged 35 to 44 years have a will.
Many people underestimate the importance of making a will – or many people put off thinking about the inevitable – but we always say to clients – would you go away for a few months without leaving your keys with a neighbour or your children with a child minder! So why would you leave permanently without settling your affairs?
Making your will is essential if you want to make sure that your assets will be divided according to your wishes. People can quickly and discreetly arrange their affairs so that there are no disputes, hardships or delays for those they leave behind.
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 he needed that money and was concerned that it could not be spent because it had been left in the will to his daughter.
This is not the case – this person is entitled to do what they want with the money during their lifetime. 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 that a person who is making a will should ask the person whom they are considering appointing if they be willing to do the job.
A Letter of Wishes can be written for the Executor – it 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 to make a will on reaching certain stages in life, such as:
- 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.
What happens to my property if I own it jointly with another person; does my husband or wife automatically get the family home?
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 owner(s). 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 the husband dies without making a will (intestate) the family would be entitled to shares in the property:
Surviving wife: 2/3 share in the property.
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 is if there is a co–ownership agreement (which we discussed a number of weeks ago) the surviving co-owners may have an 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.
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 reasons 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?
The cost of making a will depends on the complexity of the will and can range from €75.
As I mentioned earlier during Best Will in the Work Week on 21st – 25th October people can have a consultation with us for €50 about making a new will or amending an existing will.