Tipp FM Legal Slot – 3rd June 2014
On Tipp FM, John M. Lynch spoke to Seamus on “Tipp Today” about Wills, the importance of making a Will and of using a Solicitor.
After 31 years in practice I still find that making a Will is a task that many people continue put on the long finger. Are two short meetings with your solicitor not worth the peace of mind of knowing that your loved ones are looked after?
Why Make a Will?
I am invariably confronted with the question why should I make a Will and the answer is a simple one – for control and certainty. 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. In making a Will you are in control of how your estate is distributed you can structure your Will so as to avail of the most tax efficient way of dividing your estate. You can choose who is to carry out your wishes by appointing Executors. Most importantly, parents of young children should make a Will to ensure that they have made provisions to appoint Guardians of their choice, ensuring that each child is properly provided for and that they have the right people in place to manage their assets.
Why Use a Solicitor?
There is nothing to say that you have to use a Solicitor to make a Will, but it is advisable. A poorly drafted Will can be worse than having no Will at all. Wills are subject to very strict interpretation and this is for a very good reason – to prevent fraud. Therefore, any error in wording could result in the Will taking on an entirely different meaning.
Take “Ms Browne” for instance, a spinster with five siblings, one of whom died before her. “Ms Browne” wished for her estate to be split five ways with her living siblings taking one fifth each and the four children of her predeceased sister taking their mother’s share between them. However, one slight error in the wording in the Will lead it to be interpreted that “Ms Browne’s” Estate was instead to be split eight ways with her deceased siblings children sharing equally with her other siblings, which was not her intention. Or what about “Mrs Black” who bought a “DIY” Will and filled in the blanks at home, leaving everything to her three children, but had one of her children witness the Will? The law is very strict – you cannot witness a will and get a benefit under it. The witnesses must be two people who do not stand to benefit. This meant that the child who witnessed “Mrs Black’s” Will was not entitled to anything. On the point of witnesses, it is also very important that both witnesses see the author of the Will sign their name to the Will for the Will to be valid and we are often required to produce evidence of this at a later stage.
What happens if there is no will?
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 according to these rules :
- 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.
Don’t let the law dictate how you control your assets – think ahead and make your Will now.
And remember – even though you may already have a Will – making a Will is only step 1, a Will should always be regularly updated.