Tipp FM Legal Slot – 22nd October 2013
Do a lot of people still not have 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 happens if property is jointly owned 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 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.
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?
When a person makes a will s/he is not prevented from dealing with their assets, whether it is a house or money or shares that you are talking about.
So if a person makes a will leaving their house to somebody and they subsequently sell that house 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?
- 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 someone 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 as their circumstances may change.
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.
How much does it cost to make a will?
The cost of making a will depends on the complexity of the will and can range from €75.
As I mentioned earlier this week as part of Best Will in the Work Week people can have a consultation with us for €50 about making a new will or amending an existing will.