Wills and Inheritance in Ireland: What You Need to Know
Making a Will is one of the most important steps you can take to protect your family and ensure your wishes are carried out after your death.
Many people underestimate the importance of making a Will, but having one in place can make a difficult time much easier for your loved ones.
What is a Will?
A Will is a document that sets out what you want to happen to your money, property, and belongings after your death.
In simple terms, it is your instructions for how your estate should be dealt with.
A Will is a personal matter. It is up to you to decide whether you want to discuss the contents of your Will with family members, but in many cases, doing so can help avoid confusion or disputes later if your intentions are known in advance.
It is also important that anyone you appoint as an executor, trustee or guardian is aware of their role.
In general terms:
- Guardians look after your children on a day-to-day basis
- Trustees manage any money or assets for them
- Executors are responsible for carrying out the instructions in your Will
In some cases, the same person may take on more than one of these roles, but that is not always appropriate depending on the circumstances.
Choosing the right people for these roles is very important, particularly where family situations are complex or where significant assets are involved.
What happens if property is jointly owned?
Joint Tenancy
Where property is owned as joint tenants, the surviving owner automatically becomes the sole owner on the death of the other. This is known as the right of survivorship. A common example is the family home owned by a married couple. If one spouse dies, the other automatically becomes the full owner of the property.
It is important that property ownership is correctly structured and registered. One common occurrence we see is the house being registered in the husband’s name only, as this was once a common practice.
Where property is in the sole name of one spouse, and there is no Will, the intestacy rules apply. In those cases:
- The surviving spouse is generally entitled to two-thirds of the property
- The remaining one-third is shared between the children
- This can lead to practical difficulties for families.
Tenancy in Common
Where property is held as a tenancy in common, there is no right of survivorship. Instead, each owner holds a defined share, which can be passed on under a Will or, if there is no Will, under intestacy rules.
In these cases, it is advisable to have a co-ownership agreement in place, particularly where multiple parties are involved, to regulate what happens if one owner dies.
DO THE CONTENTS OF A HOUSE PASS WITH THE PROPERTY?
The short answer is not automatically.
Some people choose to leave the house and its contents together to one person, while others prefer to divide personal items separately among family members. It is important that your Will clearly sets out your intentions.
What happens if i sell a property after making a will?
You are free to deal with your assets during your lifetime, even after making a Will.
If a specific property is left to someone in your Will but is sold before your death, that gift will usually fail (lapse) unless your Will provides otherwise.
Can a Will BE CHANGED?
Yes. A Will can be updated at any time.
Changes can be made by creating a new will (which replaces the previous one) or adding a codicil (a formal amendment to an existing will).
It is important to review your Will regularly, particularly after major life events such as marriage, the birth of children, or changes in financial circumstances.
CAN A SPOUSE BE DISINHERITED?
Under Irish law, a spouse or civil partner has a legal right share and cannot be fully disinherited.
If you decide to leave your spouse or civil partner out of your Will completely, then this entitlement overrides the terms of the will and provides:
- If there are no children: Spouse is entitled to half of the estate
- If there are children: Spouse is entitled to one-third
- If a spouse receives less than their legal right share under a Will, they can choose between the gift in the Will, or their legal right share.
What RIGHTS DO CHILDREN HAVE?
Unlike spouses, children do not have an automatic entitlement to a fixed share.
A child may bring a claim under Section 117 of the Succession Act, 1965, if they believe the parent failed in their moral duty to make proper provision for them.
The court will consider the overall circumstances, including the needs and position of the child.
CAN ASSETS BE TRANSFERRED BEFORE DEATH TO AVOID LEGAL OBLIGATIONS?
It is possible to transfer assets during your lifetime, but these transactions can sometimes be challenged if they are intended to avoid legal obligations, such as a spouse’s legal right share.
In certain circumstances, the courts may set aside transfers made within a period before death where there is evidence of this intention.
What is ESTATE AND SUCCESSION PLANNING?
Estate planning involves organising your affairs to ensure your assets are transferred efficiently and, in a tax-effective manner.
This may include:
- Making a will
- Gifting assets during your lifetime
- Transferring a business or farm to the next generation
- Ensuring financial security for yourself (e.g. retaining a right of residence or funds for future care)
Proper planning ensures both protection for you and clarity for your family.
What TAXES APPLY?
Capital Gains Tax (CGT)
CGT may apply when assets are transferred during your lifetime. It is charged on the increase in value of an asset from the time it was acquired to the time it is disposed of.
Stamp Duty
This applies to transfers of property during a lifetime.
The current rates are:
- Residential: 1% up to €1 million and 2% above
- Commercial or land: 7.5%
No stamp duty applies to inheritances on death.
Capital Acquisitions Tax (CAT)
This tax is paid by the person receiving any gift, whether by inheritance or lifetime gift, and is probably one of the most important issues to consider when planning for the next generation.
The current thresholds are:
- Group A (children): €400,000
- Group B (close relatives): €40,000
- Group C (others): €20,000
Spouses and civil partners are exempt from CAT; however, cohabiting partners fall into Group C, which can result in significant tax exposure.
There are a number of reliefs available, including business relief, agricultural relief, and dwelling house relief, although these do not apply in every case.
WILL TRUSTS AND YOUNG FAMILIES
The recommended will for parents of young children is a will trust.
A will trust allows parents to:
- Appoint guardians for their children
- Ensure children are financially provided for
- Appoint trusted individuals to manage assets until they are older
Can Trustees Use Funds Before Children Reach Adulthood?
Yes. Trustees can use funds for the benefit of children where appropriate, such as education or living expenses.
It is often sensible to separate the roles of guardian and trustee to avoid any potential conflict between care decisions and financial decisions.
What About Children with Additional Needs?
Where a child may never be able to manage their own affairs, a discretionary trust can be used.
This allows trustees to decide how and when funds are used for the benefit of the child, without giving them an automatic entitlement to the funds.
WHAT HAPPENS IF SOMEONE DIES WITHOUT A WILL?
If a person dies without making a will, they are said to have died intestate.
This means their estate is not distributed according to their wishes, but instead under a fixed set of rules.
Before anything is distributed, any debts, taxes and funeral expenses must be paid. The remaining estate is then divided as follows:
If there is a spouse or civil partner but no children: the spouse receives the entire estate
If there is a spouse or civil partner and children: the spouse receives two-thirds of the estate, and the remaining one-third is divided equally among the children
If there are children but no spouse or civil partner: the estate is divided equally among the children
If there is no spouse or children, but parents are alive: the estate passes to the parents
If only siblings survive: the estate is shared equally between them (with nieces and nephews taking a deceased sibling’s share)
If only more distant relatives exist: the estate goes to the closest relatives
If there are no surviving relatives: the estate passes to the State (this is very rare)
This rigid system can often produce outcomes that do not reflect what the deceased person would have wanted, which is why making a Will is so important.
WHY PLANNING AHEAD MATTERS
Making a Will and taking time to plan your estate ensures that your wishes are respected, your loved ones are protected, and unnecessary stress is avoided at an already difficult time.
Because succession law and tax rules can be complex, it is always advisable to seek professional advice tailored to your personal circumstances.