Wills and Intestacy

What happens if there is no Will/Intestacy

FREQUENTLY ASKED QUESTIONS ABOUT WILLS AND INTESTACY?

WHAT HAPPENS IF THERE IS NO WILL?

If a person dies without leaving a valid Will then they are said to have died intestate.

WHAT IS A VALID WILL?

For a Will to be valid it must be in writing and made by a Testator who :

  • Is over 18
  • Is of sound mind
  • Is signed or marked by the Testator
  • This signature or marking is witnessed by two people

SO THERE IS NO WILL – WHAT HAPPENS NOW?

Then the estate is administered in accordance with the Part VI of The Succession Act 1960 http://www.irishstatutebook.ie/eli/1965/act/27/section/66/enacted/en/html#partvi

Briefly

if married with no children the spouse takes the entire estate

  • if married with children then the spouse takes two thirds of the estate with the children taking the remaining third divided equally
  • if not married with children then children will take the entire estate equally
  • if not married and no children the estate will go to the deceased’s parents
  • if deceased’s parents not alive the estate will go to siblings equally

DOES THE STATE TAKE YOUR ASSETS IF YOU DON’T HAVE A WILL?

Under the Succession Act the state is the ultimate successor if you have no living relative but NOT if you don’t have a Will.  If you don’t have a Will then the estate is administered as outlined above

WHAT IS AN ADMINISTRATOR?

An administrator is the person that applies to the probate for the Letters of Administration where there is no Will or

Where there is a Will and an executor was not appointed or

If the executor appointed under a Will does not want to act

WHAT IS AN EXECUTOR?

An executor is a person appointed under a Will to take out a Grant of Probate and distribute the deceased’s estate in accordance with the wishes expressed under the Will

I MADE A WILL WHEN I BOUGHT MY HOUSE A FEW YEARS AGO – I AM MARRIED NOW – DO I NEED ANOTHER ONE?

Yes marriage revokes a Will. 

People’s circumstances change over time so your Will should be updated every five years to ensure it reflects your intentions.

I DON’T HAVE A WILL – WHAT SHOULD I DO?

Making a Will is a straightforward exercise and is done over one or two meetings

WHAT DO I NEED IN ORDER TO MAKE A WILL?

You can contact Emma at emmaandrews@leahywade.ie and she will send our Will instruction sheet which you can fill out and return to us

WHAT INFORMATION DO I NEED TO GIVE MY SOLICITOR?

In order to draft your Will we need to the following information

  • your name
  • your address
  • if single, married, separated, divorced, cohabiting
  • if you have children
  • details of your property
  • details of your bank account
  • details of your post office accounts
  • details of your pension if any
  • details of any shares
  • details of any other policies
  • details of your executor/s (we recommend two)
  • details of guardians for your children (we recommend two)
  • details of trustees for your estate (we recommend two) (if you die before your children are eighteen you will need to appoint two trustees)
  • details of any specific bequests

WHAT IS A TRUSTEE?

A trustee is a person appointed under a Will or if there is no Will appointed by the Court to look after the estate of a deceased person on behalf of the minor or incapacitated person for the benefit of that person.

SHOULD THE TRUSTEE BE SOMEONE I KNOW?

Yes ideally the person should be someone you know and trust.  If you have appointed someone to act as a trustee in the event of your death then you should tell them.  You should also explain and put it in writing the matters that are important to you and that you are happy for them to spend your money on for the benefit of your children.  For example it may be important to you that your children finish third level education or that an expensive instrument is purchased for a musically gifted child or that your children are given money towards travel.  Your trustees are basically looking after your children/incapacitated person financially with the money from your estate.  It is best to make sure there is as little room for confusion as possible.

WHAT IS A GUARDIAN ?

A guardian appointed under a Will is called a testamentary Guardian.  This guardian is appointed by you to make sure you have your say in how your minor child/ren will be looked after when you die.  If you do not have a Will or have not appointed a guardian then the courts will have to appoint a guardian.  That is why it is much better if you have your say and appoint the person/s that is best to look after your minor child/ren in what is a very difficult time for them.  

I DON’T HAVE A WILL AND AM LIVING WITH MY ‘COMMON LAW PARTNER’ – WHAT ARE THEIR RIGHTS?

Cohabitants do not have an automatic right to inherit.  Any jointly held property will pass to them and may be subject to Capital Acquisitions Tax.  A qualified cohabitant who is financially dependent may make an application for provision out of the deceased’s estate but this is a very precarious position to leave someone that you have been in a committed relationship with.  If this is your situation you should seek legal advice on how best to look after those you care about in the most tax efficient manner.  Also what a lot of people do not realise is that if your partner dies and has a pension - this pension may be only payabe to spouses and children and not partners.

WHO DO I NEED TO TELL ABOUT ANY OF MY FUNERAL PLANS?

Many people believe it or not have very definite ideas of what they want for their funeral to include burial or cremation and the kind of service whether religious or not.  All of these plans need to be communicated to the your next of kin.  It will be too late to leave these plans with your Will as by the time the Will is read it is invariably some time after the person has been buried or cremated.

 

 

 

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