Making a Will

1. Why make a Will?

A will is a legal document in which the testator (i.e. the person making the will) expresses his wishes as to how his property will be shared after his death. Many people have the intention of making a will but are reluctant to do so. If you don’t make a will then you will have no say where your assets go after your death. Also if you do not state clearly in the will exactly what is to go to exactly whom then your intentions will not be borne out. Due to this, while it is possible to draft your own will, it is always advisable to consult a solicitor in the drafting of any will.

2. What makes a Will Valid?

In order for a will to be valid the testator in the presence of two witnesses must sign it (at the same time). The will must also contain the date the will was signed. Also the two witnesses must not be beneficiaries (receive anything under the will). If they are beneficiaries under the will any gift to them will be rendered void with the rest of the will be remaining valid.

3. Common Elements of a Will

The following lays out the typical format the above would take:

THIS IS THE LAST WILL AND TESTAMENT of me Jim Boggs, 12, Bloggs Rd, Dublin.
I hereby revoke all former Wills or Codicil at any time heretofore made by me.

Then at end:

IN WITNESS whereof I have hereunto set my hand on the sixteenth day of January two thousand and four.
Signature
SIGNED by the said JIM BLOGGS as and for his last Will Testament in eh presence of us who in his presence and in the presence of each other (all three of us being present at the same time) have hereunto subscribed our names as witnesses.

John XXX
Architect Jim YYY
Kilkenny Solicitor
Kilkenny

4. Appointing Executors

A will usually contains the appointment of an executor. Their duty is to administer the estate of the testator. The task can be quite arduous depending on the size and scope of the testator’s estate. It is always advisable to ask someone before you nominate him or her as executor of your estate. A typical clause appointing an executor is as follows:

‘I appoint as Executor and Trustee of this my Will my brother Patrick (known as Pat Bloggs).’

If no executor is appointed or the executor has predeceased the testator, the estate will have to be administered by a person called an administrator. This person will be the residuary legatee and devisee (i.e. the person who inherits the remainder of the estate that is left after all the gifts under the will have been satisfied.)

5. How to give something under a Will

This may seem quite a simple step in the procedure but it a very common area where mistakes are made in the drafting of wills. It is very important that it is made extremely clear a) what gift is being given and b) who it is being given to. It is best to use an example to illustrate. In relation to a) imagine someone is giving their house to someone in their will, which is very common. If they do not expressly state that they leave the contents of the house to that person it is presumed that they did not intend to do so. The contents then go to the residuary legatee. In relation to b) it is quite normal in Wills that people are leaving property to their relations who often bare the same name as another relation.

This is why it is very important to state clearly who is to get the gift so that it avoids any ambiguity. A typical gift under a will would be drafted as follows:

‘I GIVE DEVISE AND BEQUEATH my house at 26, Fairlawns, Dublin x to my son John for his use and benefit absolutely.’

6. The principle of Survivorship

This principle arises where two or more people own something jointly. On the death of one joint tenant, his interest automatically passes to the survivors. This is most common in husband wife relationships. Once the death certificate is obtained the property passes to the survivor(s). The effect of this is that this property does not form part of the testator’s assets for the purposes of the will. Such property is outside the will and is not considered when administering the estate.

7. Legal Right Share – Spouses/Children

It is very important for a person when making a will to make provision for their spouse. If the spouse is unhappy with what s/he has received under the will s/he may, under the Succession Act 1965, elect to take her/his legal right share under the Act. This share is one half of the entire estate if there are no children and one third if there are children. If the spouse elects to do so, then s/he takes this share in preference to what s/he has been left in the will. It is up to they executor to notify the spouse of her/his legal right share. Therefore, it is very important to remember the above when drafting a will, as if you don’t the rest of the will may be altered to satisfy the legal right share.

8. Intestacy: What happens if you don’t make a Will?

This happens where someone either fails to make a will or fails to dispose of their entire estate. The latter is called a partial intestacy. In this situation we apply the rules of intestacy as laid down in the Succession Act 1965. Where there is no will at all the testator’s next-of-kin becomes the administrator of the estate. The rules of intestacy lay out a fixed method of disposing the assets and they run in family lines. These rules will trace back to very distant relations if no closer ones are alive or contactable. If in the highly unlikely event that there are no relatives whatsoever the State will inherit the assets.

9. Inheritance Taxes

Property that passes under a will or on intestacy may be liable to various forms of taxation. A solicitor who is administering the estate will inform the beneficiaries of these taxes. Obviously property that is not passed under the will is not liable to tax. There are also certain assets that will be exempt from tax including the dwelling house of the deceased. It is the responsibility of the personal representatives to pay the tax.

10. Costs involved in making a Will

Making a will with a solicitor is not expensive (often only a couple of hundred euro) and is well worth it to ensure that everything is done correctly and your wishes will be carried out after your death. The expenses incurred in administering your estate will be deducted from the estate along with the funeral expenses before any gifts are given out under the will.