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Making and executing a Will, especially after purchasing a property, is probably the most important legal document an individual will sign. Despite the fact that a Will is so important, very few people during their lifetime actually execute a Will. Most people have a psychological or emotional difficulty addressing thoughts of a Will, or with meeting a Solicitor or other persons to instruct the drafting of a Will and then executing same. These aversions are very understandable as nothing can be as stressful or as morbid as planning for one’s own death. However as anybody who has been touched by bereavement knows, that creating a Will during one’s lifetime will in fact minimise the grief and distress felt by surviving relatives.
A Will also guarantees that the affairs of a deceased person will be dispensed with and distributed far more urgently than someone who dies either without having made a Will or with an invalid Will, thereby minimising stress for surviving loved ones.
A SHORTLIST OF DEFINITIONS
Prior to defining and explaining the Laws of Inheritance I propose setting out a list of definitions in plain English.
Below you’ll find a plain English definition of the different legal terms and expressions that are used to sort out the affairs of someone who has died.
The Administrator/trix.
Where the deceased hasn’t appointed a personal representative (in his or her Will) the person looking after the financial situation is known as an administrator.
The Beneficiary.
A beneficiary is someone who inherits either part or the whole of the deceased’s estate.
The Deceased.
The ‘deceased’ refers to the person who has died.
The Estate.
The ‘estate’, or the ‘deceased’s estate’ is made up of all the assets that the deceased person owned. This includes bank accounts, property, jewellery, stocks and shares, furniture, and so forth.
The Executor.
If the deceased has written a Will, he or she will have appointed an executor to ensure that his or her wishes are carried out. Many people appoint several executors, and it is normal for the personal representative to be one of them.
Intestate.
If the deceased did not write a Will, they are said to have died ‘intestate’. The word ‘intestacy’ refers to the situation where no Will exists. What happens to the assets where there is no will is set out in the 1965 Succession Act.
The Personal Representative.
The personal representative is the person ultimately responsible for sorting out and finalising the deceased’s affairs.
The Succession Act.
This piece of legislation sets down the requirements for a valid Will. Under Irish law a spouse and children are legally entitled to a certain share in the property of a deceased parent or spouse - whether a Will has been made or not. As it currently stands, if there are children then the spouse’s share, by legal right, is at least one-third of the estate. Where there are no children the spouse is entitled to at least one-half of the estate.
The Trustee.
If there is some reason why some or all of the deceased’s assets cannot be distributed immediately to the beneficiaries, then the Will may provide for certain assets or property to be held ‘in trust’. This situation might arise, for example, if the deceased was leaving something to someone who was under the age of 18. The person whose responsibility it is to look after such property or assets is called the trustee. Many people appoint more than one trustee in their Will.
The Will.
This is the legal document in which the deceased set out his or her wishes regarding his or her assets.
As I have said, a Will (after the purchase of a property) is possibly the most important document an individual will write and create during their lifetime. It will govern not just who inherits the property / assets after an individual has passed away but will also govern who doesn’t inherit.
MONEY DOCTOR ADVICE: It is important to take professional and legal advice in relation to the drafting and execution of a Will especially where there are complications. Most homemade Wills or Will writing services can be ineffective and can often lead to further confusion after death.
When somebody dies without making a Will or having made an invalid Will, they are said to have died Intestate. When somebody dies with a valid Will they are said to die Testate.
If a party passes away without having made a valid Will their inheritance is in fact governed by the State and the provisions of Law apply and direct who should inherit the property of the deceased.
WHEN THERE IS NO WILL OR AN INVALID WILL
In these circumstances, under the Succession Act 1965, the following rules apply:-
On the death of a married person with no children, the surviving spouse is entitled to the entire of the Deceased’s Estate.
When a married person with children passes away, their surviving spouse is entitle to two thirds of the Deceased’s Estate and their children are entitled to the remaining one third.
If a single person or widowed person passes away without having made a valid Will their next of kin will be entitled to inherit their Estate as outlined in the Succession Act 1965
MONEY DOCTOR ADVICE: Many parties believe that there is no necessity to make a Will as they are happy to allow their Spouse or their next of kin inherit as per the Rules above. However, a Will should always be made as not only will it mean that the Estate is distributed more quickly but also distributed in accordance with your wishes - there may be relatives, next of kin or bequests you may want to acknowledge. Remember it is also a simple process – you will need two independent witnesses ( who cannot gain from the Will ) and a nominated person to execute your wishes (executor / executrix ), then date the Will and sign it.
THE RIGHT OF THE SPOUSE TO INHERIT
A Spouse, i.e. somebody who is legally married to another person is entitled to share in the Estate of that Deceased person regardless of the Will made by the person prior to their death.
If a person has made a Will and passes away, regardless of what is mentioned in that Will, the Spouse is entitled to one half of the Deceased’s Estate if there are no children.
If a person has died having made a Will with a Spouse and children, the Spouse is entitled to one third of the Deceased’s Estate.
The Spouse is also entitled to a portion for their own benefit of the family home namely the place where the Husband and Wife normally resided prior to the death of a spouse.
However note that the right to apportion the family home should not exceed the legal right share (i.e. one half if there are no children/one third if there are children of the Spouse to share in the Estate of the Deceased).
In order to explain this element of the Law better it may be useful to give an example:-
(a) Mr. & Mrs Murphy are legally married. Mr. Murphy makes a Will. They have no children and live in a house which is registered in Mr. Murphy’s sole name.
Mr. Murphy dies and when his Will is read it appears that under his Will he has left everything to charity.
The value of Mr. Murphy’s Estate if €2m. Regardless of the Will of Mr. Murphy, his spouse is entitled to :
(i) The Family Home and
(ii) One half of the share of Mr. Murphy’s Estate to include the Family Home.
If in this example Mr & Mrs Murphy had children but the facts were exactly the same, Mrs. Murphy would only be entitled to one third of the value of the Estate (to include the Family Home).
STATUS OF CHILDREN UNDER A WILL
If a party dies leaving children and no surviving Spouse, these children will be deemed to be the next of kin of the Deceased and entitled to share in the Estate of the Deceased.
However they are only entitled to share in the Estate of the Deceased because they are the next of kin of the Deceased for legal purposes.
It is a common misconception that an individual has an obligation to their children to leave a portion of their Estate to them. Unlike a Wife or Husband (Spouse) children over the age of eighteen have no right to share in the Estate of their parents and rank as a beneficiary to the Estate of a parent purely in their position as next of kin.
A child (over the age of 18) of a Deceased person who has been disinherited in a Will may challenge this Will in the Courts on very strict legal grounds to the extent that the parent failed during their lifetime to make proper provision for the child.
Just because a child has a right to challenge the Will of a parent, this does not mean that the parent has an obligation under Law to leave anything to that child in their Will.
Confusion often arises because Spouses have certain rights in the Estate of a Deceased person by virtue of the fact that they were married to the Deceased and children often share in the Estates of Deceased persons not because they are children but because they are legally the next of kin of the Deceased. In other words a party may make a Will during his lifetime wherein he endeavours to disinherit his Spouse and children. Once he has passed away the Spouse has an automatic right to share in the Estate despite what is in the Will but the children do not have such automatic right. However if a party dies without making a Will the children may share in the Estate of the Deceased person by virtue of the fact that they are the next of kin.
NON - MARITAL CHILDREN
The status of children born to an individual outside marriage is exactly the same as children born inside marriage.
For example, a couple may have never married but have three children. If this individual does not make a Will and passes away the partner will not be entitled to any share in the Estate of the Deceased but rather the children as next of kin will be entitled to a share. In this example, if the Deceased had made a Will leaving everything to the surviving partner and the children over the age of eighteen the children have no right to share in the Estate of the parent who has passed away.
The matter becomes even more complicated in the following example :
A married couple have three children. One party to the marriage has a fourth child outside of the marriage with another party. This parent passes away without making a Will, all four children as next of kin are entitled to a proportionate share in the Estate of the Deceased parent.
NON – MARITAL RELATIONSHIPS
Non-Marital partners have no right to share in the Estate of a Deceased Partner. For example, a man and woman may have lived together all their lives as husband and wife (often referred to as a Common Law Wife or Husband) and the male partner passes away without having made a Will. The surviving partner has no right to share in the Estate of the Deceased and the Estate will be inherited by the next of kin of the Deceased person e.g. parents, brother or perhaps even children. Accordingly one can envisage the situation whereby a man and woman live together as husband and wife for thirty years and have three children but never marry. One party to the relationship passes away without having made a Will and the surviving party is entitled to no benefit in the Estate of the Deceased. Instead the estate passes to the children of the couple as the next of kin, legally speaking, of the Deceased person.
MONEY DOCTOR ADVICE: It is extremely important if you are involved in a non-marital relationship to ensure that you have proper Wills drafted to ensure inheritance for surviving partners and their children.
THE ROLE OF THE PERSONAL REPRESENTATIVE
When someone dies it usually becomes clear fairly quickly whether he or she has left a Will. If they have then this will list one or more Executors, one of whom will be appointed as the Personal Representative of the Deceased.
If a Personal Representative has not been appointed in the Will or no valid Will is in existence, then the Courts will appoint an Administrator to act as a Personal Representative (usually the next of kin).
It is the Personal Representative’s or Administrator’s responsibility to finalise the Deceased’s affairs. The Administrator or Executor is usually referred to as the Personal Representative. The Personal Representative should within a reasonable period of time collect the Deceased’s assets, pay any debts and distribute the remaining assets to the Beneficiaries.
MONEY DOCTOR ADVICE: One other reason for making a Will is you can direct who is your Personal Representative and who is charged with the responsibility of dealing with your affairs after your death. This way, you will avoid any application to the Courts to appoint somebody who is inappropriate for the purpose.
Obtaining the Grant of Representation
The primary obligation of the Personal Representative is to obtain a Grant of Representation. If somebody has died with a Will they will be entitled to a Grant of Probate and if somebody has died Intestate (without a Will) they will be granted a Grant of Representation.
The Grant is made by the Probate Office which is an office of the High Court. If the application is made for the Grant in Dublin one applies to the Probate Office in the Four Courts. Outside of Dublin every County Hall or Registrar will have a Probate Office. Only somebody with a valid Will may apply for Probate. If somebody has died with an invalid Will or no Will, the Personal Representative applies for administration called Letters of Administration.
Commonly, regardless of the status of the Will and the Estate of the Deceased person, somebody is said to apply for Probate even if they are applying for a Grant of Administration.
The Grant of Representation (i.e. Grant of Probate or Letters of Administration) is an Order from the High Court which allows the party to whom the Grant is issued to deal with the affairs of the Deceased person. It is effectively a Court Order or an authority from the Court for this person to step into the shoes of the Deceased person and carry out the wishes of the Deceased person if there is a Will or alternatively deal with the Estate as per the Law of the land if there is no Will.
A Grant of Representation allows the Personal Representative to execute documents for the sale of property, the lease of property and the remortgage of same, for the transfer of property to other members of the family who may inherit under the Will or the Law, to close Bank Accounts, transfer money and discharge debts.
In order to obtain the Grant clearance must be sought from the Revenue Commissioners.
Importance of Notifying the Tax Office
Prior to obtaining the Grant of Representation from the Probate Office, the Personal Representative must settle the deceased’s tax affairs. Furthermore before financial institutions can release money, the Personal Representative must apply to the Capital Taxes Office of the Revenue Commissioners for something called a Letter of Clearance- effectively stating that all taxes have been paid to date or in the process of being paid. Without this Letter of Clearance from the Revenue Commissioners. banks, building societies, credit unions, insurance companies and other financial institutions are prohibited by Law from releasing any monies other than
those held in a current account lodged or
deposited in the joint names of the deceased and another person or persons.
The only exception to this is money that is being held in the joint names of the deceased and his or her surviving spouse.
Furthermore the application to the Revenue Commissioners will also contain details of the beneficiaries to the Estate of the Deceased person.
A Personal Representative must obtain a Grant from the Probate Office to deal with the affairs of the Deceased person. The Probate Office will not release such a Grant until such time as the Tax Clearance Certificate from the Revenue Commissioners has been delivered which does not just address the Tax Affairs of the Deceased but also the Tax Affairs of the beneficiaries to the Estate.
MONEY DOCTOR ADVICE: Many people apply to the Revenue Commissioners and the Probate Office to be appointed as the Personal Representative of the Deceased themselves. Both the Revenue Commissioners and the Probate Office are extremely co-operative when dealing with members of the public. Again depending on the complexity of the estate, legal accounting and financial advice should be sought prior to contact with these offices.
How the Assets are passed on
The Deceased’s assets will be passed on to the Beneficiaries in one of three different ways:-
1. Assets left by Will pass to the Beneficiaries in accordance with the terms of the Will.
2. If there is no Will assets that would otherwise have passed by Will instead pass by special Laws laid down by Statute.
3. Assets may also pass outside of the Will or Intestacy
The benefits of Joint Ownership
Regardless of the Law in relationship to Intestacy or the Will drafted by an individual, the Rule of Joint Ownership is extremely important. Joint Ownership effectively takes precedence over either the Law or the Will.
Under Law, two parties or more can own property in two ways. They can own it as Tenants in Common or by Joint Tenancy. I do not propose to set out in depth details of the differences between Joint Tenancy and Tenants in Common as this is a very particular legal issue, but it is important that the concept be understood particularly in relation to any post-death planning.
When two parties or more are said to own property as Tenants in Common they are said to own shares in that property. For example :
Mr. Murphy and Mr. Smith buy a house as Tenants in Common. They own a half share each. The issue of Tenants in Common need not concern us in this chapter.
If in our example given above Mr. Murphy and Mr. Smith buy a property and own same as Joint Tenants they do not own shares in the property but rather they own the property jointly. If Mr. Smith was to die, Mr. Murphy would be the surviving/remaining owner of the property and would be deemed to automatically inherit the property. If for example Mr. Murphy, Mr. Smith and Mr. Jones were to purchase a property as Joint Owners and Mr. Smith was to pass away, Mr. Murphy and Mr. Jones would be the surviving joint owners. If Mr. Jones was then to pass away Mr. Murphy would be the remaining owner of the property.
The relevance of Joint Ownership is extremely pertinent particularly in relation to family financial planning. If a husband and wife have bank accounts in joint names they do not own shares in this bank account but rather they own the bank account jointly. If the Husband or Wife pass away, the surviving spouse is said to be the surviving or remaining owner of the property i.e. the bank account.
The same concept applies to all property including family home. If a family home is held in joint names neither the Husband nor Wife own a share of the property but rather own the property jointly. If one party passes away the other is deemed to be the surviving owner of the property.
Regardless of the Law or any Will made, if property is held jointly it cannot be severed.
MONEY DOCTOR ADVICE:
Ensure that all family and marital property is held jointly including the family home - it is better for all concerned.
If involved in a non-marital relationship, both partners should ensure that all property is held jointly as the death of one partner will ensure the other partner inherits which is denied under Law or via the Will.
Please complete the attached pdf Will Questionaire and / or specific instruction application forms below for processing. There is a fee payable for processing same.
Will - Precedent Will - Married with Children
Will - Precedent Will - Single Person
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