By John Hickey | 23 November 2021

10 Things You Need To Know About Drafting A Will

10 Things About Drafting A WillWe have already seen in this series of articles that the number of people in Ireland with a Will in place is quite low. This is surprising given the financial ramifications for a persons family should you die 'intestate' (without a Will) as your estate will take longer to pass through the 'probate' process before it can be awarded to those whom the State deems appropriate.

A classic example of this would be if the main provider for a family dies intestate and all of the familys finances are in their name. How will the remaining parent organise their financial affairs if they are not allowed to access specific accounts should their partner die?

It is important to note that when a person dies intestate their estate will take much longer to pass the probate process before any decisions can be taken regarding the allocation of funds or access to bank accounts.  If this happened, how would your family survive without resorting to expensive Court proceedings to access finances which are by right yours?

Most people are understandably too busy living their life rather than thinking about drafting their Will and likewise many think that drafting a Will is both a complicated and expensive thing to do.  This is one of the biggest misconceptions regarding Wills and is often cited as the main reason why so few people have a Will in Ireland.

Yes, it is true that not many of us like to think about passing and there may be some who feel somewhat superstitious just thinking about the topic, however, what is often overlooked is that drafting your Last Will And Testament is actually quite a simple, straightforward and inexpensive process to complete.

Key Things To Consider When Drafting A Will

1. Solicitor:  whilst technically anyone can draft a Will there are specific requirements it must meet in Law in order for it to be treated as a bona fide Will on your passing. A solicitor is often seen as the best person to discuss making a Will as they can ensure that all of the necessary legal requirements are met and can also ensure the safe-keeping of your Will until it needs to be called upon. 
2. Executor:  No matter what you decide to put in your Will and whom you want to allocate your Estate to, you should think about who the best person your Solicitor can liaise with when the time comes to execute your Will.  You may also want to think about appointing a co-executor just in case something happens and your primary executor is unavailable.  Make sure you also discuss your choice with them in advance in case they are unwilling.
3. Estate:  Your estate is all your worldly possessions which you would like to bequeath to someone else when you die.  What would deem worthy to pass on to your loved ones?
4. Beneficiaries:  Who would you like to leave your estate to?  Whilst this may appear to be a quite simple process, this can actually cause a lot of issues and is one of the main reasons for a Will to be contested owing to some family members feeling that they should have been awarded something from your estate.  Important considerations include what should happen to your estate if you have children with different partners/ spouses, or if you have remarried, would you still like to provide for your first family?  It is also important to consider who should receive a share of your estate should one of your named beneficiaries have died.
5. Distribution:  Whilst considering who you would like to leave your worldly affairs to, you will also want to decide how you would like to allocate your estate.  For example, how will you split up your belongings such as your home (and other properties), specific jewelry, art or other valuables or any investments or savings you may have?  Whilst in the first instance, a simple Will will ensure that everything passes to your spouse on passing and will provide for your children's future, you should also think about any specific items or a specific share of your estate you would like to bequeath to certain people.
6. Guardians:  If you have young children, who will look after them and manage their affairs until they are adults?  As well as considering dependent children under the age of 18 this can also include disabled adult children.
7. Power Of Attorney:  with the rise of illnesses such as dementia and the ever-present risk of an accident causing a person to lose their mental capabilities, you may also wish to consider the preparation of an 'Enduring Power Of Attorney' which will appoint a specific person(s) to manage your affairs should you become incapacitated and unable to do so. 
8. Marriage:  it is important to note that in most cases marriage changes everything in relation to a Will whereas a Divorce does not.  If, for example, you have a Will and subsequently get married your Will will be revoked.  You may therefore have falsely assumed that your Will (prepared before you got married) will provide for your spouse and family whereas in reality should you die under these circumstances you will be treated as if you have died intestate.  It is also important to note that should you have prepared a Will with an ex-spouse, obtained a divorce and met a new partner, your new partner may find that all of your possessions may pass to your ex-wife on your death if you have not renewed the original Will.
9. Step Children:  do not assume that because you have married someone who has children from a previous relationship that your step-children will automatically benefit from your Will.  To ensure your step-children can benefit from your Will you will need to specify exactly what you would like them to receive in your Will.
10. Anything goes:  whilst the preparation of a Will is a serious consideration, it is worthwhile noting that a Will can actually include anything.  You may decide that your prized stuffed parrot is exactly what your young nephew may want or you could decide that the local cats home is a suitable beneficiary.  What is important is that you realise that this is YOUR WILL and it is up to you what you do with your estate and who you should leave it to.

Drafting a Will can be as simple or as complicated as you would like it to be.  In the first instance, the important thing is that you do something to ensure the distribution of your estate isn't delayed as a result of dying intestate and taking longer to pass through probate.  Even if your Will simply states that everything you own will pass to your spouse on your passing this will be much, much better than having nothing.

People are often surprised at how inexpensive a Will can be to draft.  As long as you dont have complex financial affairs a Will is usually a quick and easy process to complete.

So, with this in mind why don't you put your family centre stage and give them the peace of mind they deserve should the unthinkable happen. This should mean their grief is not compounded through possible financial hardship which could otherwise have been so easy avoided.

To find out more about how the Wills and Succession Planning team at Poe Kiely Hogan Lanigan can help you to navigate your way through the preparation or execution of your Will, please get in touch for an initial consultation.  

If you would like to read the other articles in this series of articles on the importance of drafting your Will, you can find them here:

 

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Written By John Hickey

John Hickey joined Poe Kiely Hogan Lanigan in October 2006, became a Partner in 2014 and Managing Partner in 2020. John also heads up the Private Client Department, specialising in conveyancing, probate and agricultural law. Prior to joining the firm, John worked as a trainee and qualified in a New Ross law firm.

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