Frequently Asked Questions Regarding Wills & Probate

What happens to my estate if I die without making a will?

 

If a person dies without making a will, that persons’ assets will be divided according to the laws of the country he/she lives in. The laws of intestacy will denote the next of kin to inherit. If no relatives are found, the state may inherit the estate in its entirety.

 

 

Does a person need a minimum amount of assets to make a will?

 

No. Any person can create a will to dispose of their assets whether they are worth €10 or €10,000,000. However, taxes do apply to the assets that are inherited, so an understanding of these taxes is important so they can be taken into account when the will is being drafted. If you wish to pay the inheritance tax for your beneficiaries, we will help you with this. If it’s particularly complex we will advise a tax expert be brought in to maximise any tax laws you can rely on to minimise tax payable on succession.

 

 

What is a living will and how does it differ from a last will?

 

A living will is similar to a last will, however in a living will a person can put in reservations to be carried out if he/she is still alive but is unable to make decisions for themselves. For example if a person is in a coma, then decisions they made in their living will shall come into effect. This document is used with end of life wishes and DNR’s (do not resuscitate). This is terminology that you may see, but living wills are not legal in Ireland.

 

 

What are the main benefits of a living will versus a last will?

 

A last will is a very simple legal document setting out what’s to happen to your assets when you die; anybody who wants to make a living will must know that they are not valid in law in Ireland. A drawback however of a last will is that depending on how big or complicated the estate is, the probate process could take months even years before the matter is decided in court. A living trust can be used to transfer property and assets to beneficiaries without going through the potentially lengthy probate process. It can save time and money, a living trust is also a more private affair, often probate cases are made public. People often make both, they use them together to name guardians for minors and to express final wishes not otherwise captured in a living trust. There is a demand to have living wills recognised in Ireland but for now they are not in law or recognised by the law in Ireland.

 

 

Once I make my will, can I change or cancel it in the future?

 

Yes, at any point after the final will is executed it can be changed or cancelled. It is advised that you seek legal advice when doing so to ensure what you want included, is. Speaking with us also gives us the chance to advise you on all of your assets.

 

 

How do I cancel my will?

 

You can cancel a will in a number of different ways;

 

If you make a new will, it will automatically cancel the old one.

 

If you get married, that also automatically cancels the old will as your spouse will now have a spouse legal right share to your estate.

 

You can also cancel a will by “destroying” it. If you want to do this, the best way is to go to a solicitor’s office and make this intention known; you will then sign a dated document expressing these intentions in front of your solicitor. If you destroy it on your own, it may not cancel the will as the intention of the testator is often difficult to establish and your past wishes may cause a dispute after you have passed away.

 

 

Do I need to tell anyone about my will?

 

Although you do not need to tell a family member about your will, it is heavily advised that you also tell the executor that you have appointed. It can help your family locate the will upon your death to speed up and lower the cost of the probate process if you tell them where you have competed your will. You do not need to give anybody a copy of your will but it is important that you retain a copy of it alongside all of the necessary documents needed upon your death. You should inform the person you appoint as executor that we hold your will.

 

 

When could I contest a will?

 

If you feel that what you received in a will of a parent was insufficient, unfair or indeed if you have been excluded, then you may wish to challenge the will under the succession act.

 

You can challenge a will on the following four bases.

 

If the person making the will was not of sound mind when he/she drew up the will, then the will may not be valid and it may be revoked.

 

If the person making the will was under undue influence from a third party when he/she drew up the will, the will may not be valid and it may be revoked.

 

If the person making the will did not fully understand or appreciate the conditions he/she made in the will, the will may not be valid.

 

If the person making the will failed to sign the document to the necessary standard required, the will may be invalid, and if challenged in court may be revoked and if the document is not validly witnessed.

 

Under section 117 of the Succession Act 1965, a child can take a claim if they are excluded from a parents will. The applicant/plaintiff/excluded child must prove they have failed “to be provided for morally” by the parent. It is a very high burden of proof the child has to reach. Despite what many children think, there is no automatic entitlement for a child to inherit a parent’s wealth or part thereof.