Contemplating your own mortality and considering making a will can be an unpleasant and undesirable prospect for many.
Succession law can be complex and there are many factors which need to be understood and considered when it comes to creating your will and ensuring that it will do what you want it to do.
However, if drafted correctly, your will becomes a highly valuable document which can give your loved ones peace of mind and a clear map forward following your death.
We have compiled a list of the most frequently asked questions we get in this area .
When, Why and How?
I’m getting older. What documents should I have in place?
It’s never too early to get consider estate planning and creating end-of-life documents into place. This may include: A Will, a Trust, Life-insurance policies, an Enduring Power of Attorney or an Advanced Healthcare Directive.
A Will is a great a starting point and in our view everyone should have a Will.
Your Solicitor should listen to and understand your particular individual circumstances and be in a position to propose what documents you might want to consider creating.
Why should I have a will?
If you die without a Will you are deemed to have died intestate. The Succession Act 1965 sets out who is entitled to act as your Personal Representative and who is entitled to what percentage of your estate.
Dying without a Will can be messy and can be expensive to resolve depending on the nature and extent of the assets concerned.
Dying without a Will may unintentionally benefit a relation you may not otherwise want to.
Who can make a will?
Anyone over the age of 18 with capacity may create a Will.
When should I change or update my will?
We advise clients to review their Wills at a minimum once a year or as and when any major life events occur. This can be as simple as putting a reminder in your phone.
Marriage can revoke a Will. If you have gotten married talk to your Solicitor and ascertain whether you need to update your Will.
What is a codicil?
A codicil is a document, separate from your will, that contains minor amendments or additions to your will.
Do I need a Will if I have a Power of Attorney?
Yes, a Power of Attorney is a separate document which appoints and authorises your Attorney to make decisions on your behalf whilst you are alive.
Your Will only takes affect after your death.
Parties named in the will
- What is a testator?
A testator is the legal term for the individual who makes and executes a will. - What is a beneficiary?
A beneficiary is the legal term for the person who receives a benefit under the will. - What is a devisee?
A devisee is the legal term for a beneficiary who receives real estate or property in a will. - What is an executor?
An executor is the legal term for the person appointed by the testator to carry the instructions set out in their will. They are responsible for making sure that the wishes of the will are carried out. - Can I choose anybody to act as my executor
Yes, anyone who is capable can be appointed to act as an executor. - Whom should I select to be my executor?
An executor should be responsible, trustworthy and willing to act. If choosing a family member, or somebody who stands to gain from the will, be sure to choose someone who can remain objective.A legal professional can be appointed and will ensure that the estate is administered at a professional level.
- Can my executor be a beneficiary in my will?
Yes, an executor can be a beneficiary in a will. However, caution should be exercised and carefully considered. It may be appropriate to appoint a neutral party, such as a legal professional.
Signing and legal matters
- How and what do I sign?
Your will must be signed and dated on the last page of the will. No details should follow this signature. The signing must be witnessed by two individuals, who will then sign as witnesses. - Can a beneficiary witness my will?
No, a beneficiary should not be a witness to a will, neither should the spouse of a beneficary. As a witness they will be disqualified from benefiting from the will. - Can my executor witness my will?
Yes, an executor can be witness to a will, so long as they are not also a beneficiary.
Spouses and partners
- Can a husband and wife make a Joint will?
Yes, a married couple can make a Joint Will but these are more complex. - Can a husband and wife make Mirror wills?
Yes, a married couple can make Mirror Wills. - Does marriage revoke a previous will?
Unless a will is made in contemplation of marriage or civil partnership in mind, it will be revoked. - Does divorce revoke a previous will?
A divorce will not revoke a previous will. However, the terms of the divorce should address this issue. We recommended updating your will in the event of divorce. - What is a civil partnership?
Civil partnership is a legally recognised life-long civil union between two people of the same sex. However, as of 2015 same sex couples can now legally enter into marriage and no new civil partnerships can be made. - What is a common-law marriage? Are there any special considerations for common-law partners?
Common-law marriage refers to the relationship of a long-term, intimate, committed, cohabiting couple who are not married. Legally, Ireland does not recognise common-law marriage. - How do I address step-children?
Be clear as to exactly who the step-children are by referring to them by their full names. Terms like ‘my children’ are unclear and can leave the will open to challenge and contention. - Do I have to list all my children?
You do not have to list all your children in your will. According to Irish law, a child is not automatically entitled to benefit under a parent’s will. It is recommended to list all children, including deliberate exclusions to ensure that inheritance is correctly distributed. - What is a guardian?
A guardian is a person/parent appointed with the legal responsibility to care for a child and oversee their upbringing. - Do I have to appoint a guardian for minor children in my will?
You do not strictly have to appoint a guardian for minor children in your will, but you should. If a guardian is not appointed the court will have to choose a guardian, which can be undesirable and can lead to disputes. - What should I consider when appointing a guardian?
A guardian can be any person over the age of 18. A guardian should be responsible and have the means to take care of a child. It is recommended to list multiple guardians and update your will regularly to ensure that there is a suitable guardian to care for your child.
Estate value and gifts
- What assets should I consider when valuing my estate?
Any and all assets that hold value should be considered. This includes money held in the bank, real property, vehicles, jewellery, etc. Additionally, you should consider assets such as pensions, stocks, shares, bonds, interest in other properties and any money you are owed. - What liabilities should I consider when valuing my estate?
Funeral expenses, outstanding pre-death taxes, debts such as bank overdraft or mortgage, costs of administration of the estate, legal costs, income tax and capital gains, and tax liability that arises during the administration of the estate. - Does my life insurance form part of my estate?
Life insurance or its benefits typically do not form part of the estate as the assets are distributed outside of the will. - Do pensions form part of my estate?
Yes, a pension will form part of your estate. - What is the Residue of the estate?
The Residue of an estate refers to the balance of any assets not specifically dealt with or addressed under the Will. - What is a Specific Gift?
A specific gift or a specific request is a particular item, group of items or property that is designated to a beneficiary in a will. - What is the difference between an absolute gift and a conditional gift?
An absolute gift is irrevocably and unconditionally given. Conversely a conditional gift is only inherited once specific criteria have been met. - Can I make a gift to a charitable organisation?
Yes, it is entirely possible and fairly simple to make a gift to a charitable organisation. This is handled like any other gift would be, in your will.
Inheritance tax
- What is Capital Acquisition Tax (CAT) ?
CAT is the tax payable on assets that have been inherited by a person from the deceased. - What is the rate of CAT?
Currently the standard rate of CAT in Ireland (2023) is 33% - How can gifts lower the amount of CAT?
Some gifts are applicable to taper relief which reduces the amount of inheritance tax. Some gifts are exempt from inheritance tax. - What are exempt gifts?
Exempt gifts are gift that do not incur inheritance tax .Small Gift Exemption permits an annual exemption from tax, up to the value of €3,000, per beneficiary. - Will payout of insurance policies be taxed?
This will depend on the nature of the relationship between the deceased and the beneficiary and the amount being paid out. - Will my pension be taxed?
This will depend on your pension type. Typically your pension will not form part of your taxable estate and as such will not be taxed. Some pensions will allow for death benefits that will make it possible to pass on the money tax free. - Where can I find out more about CAT
Learn more about the requirements of CAT, https://www.revenue.ie/en/gains-gifts-and-inheritance/gift-and-inheritance-tax-cat/index.aspx
Additional instructions and clauses
- Can I name a pet as a beneficiary?
A pet cannot be named as a beneficiary and cannot be left money or assets in your will. You can however make provisions to ensure that they are provided the proper care. - How can I ensure my pet is fed and watered in case of my sudden illness or death?
For immediate care it is important to have a friend or family member agree to care for your pet. Carry an emergency ‘alert card’ with the contact information of the carers so that they are notified. For long term care specific instructions can be left in your will as to who you would like to care for the pet. It is possible to leave a cash legacy to the caretaker to provide for the pet. This legacy can be made conditional so that it is only paid out if the animal is properly cared for. - Can I put instructions for my funeral in my Will?
You can put instructions for your funeral in your will however it is strongly advised not to do so. These instructions are not legally binding and the funeral will often be planned before the estate has been distributed. It is better to leave a letter of wishes or instruction to your family to have your wishes carried out.
Drafting a will can be a complicated process. It’s something that needs to be done with care and consideration. Make use of the knowledge and experience of a professional legal team. Allow us to help in matters of wills and succession planning to make sure that your legacy is protected.
