By John Hickey | 29 September 2021

Important Considerations When Drafting Your Will

Important Considerations When Drafting Your WillIt is a well known fact that Irish people dont like to discuss matters such as their health, wealth or death.  In fact a recent survey "Lets Talk About Death" by Royal London discovered that almost 60% of the Irish population do not yet have a Will in place.  A further 34% went on to say that they meant to but just hadnt gotten around to it.  

This is entirely understandable as there will always be something better to do than sit down and discuss ones final demise.  There are however some pretty compelling reasons why we all should take time out from our busy lives and get our Will in place.  

On one hand, taking the time to plan in advance will ensure that your affairs can be handled in as tax efficient a manner as possible meaning your loved ones can receive more from your estate due to a lower tax burden, whereas on the other, not dying intestateallows your remaining loved ones more time to grief and less time dealing with complex legal matters untangling your affairs.

It should also be noted that drafting a Will is not an overly expensive process for most people.  In fact for most, it is quite a simple and straightforward process.  

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We hope genuinely hope that people stop what they are doing and take some time out to draft their Will as this should also provide some peace of mind that things will be slightly easier for your loved ones when you pass.  

This article will now outline several important considerations if you are currently contemplating drafting a Will and is the first in a series of four articles looking at various aspects of drafting your Last Will and Testament.  Please make sure to take the time to read the others. 

Changing Your Will

A Will doesnt take effect until you die and will therefore allow you to change it at any time up until you die (provided of course you have the mental capacity to do so). Given your Will only takes effect when you die you can continue to deal with your assets during your lifetime.

A good example of this is if you decide to leave your house to someone in your Will and you then subsequently sell or transfer it during your lifetime.  If your circumstances change and you have already drafted your Will (for example if you marry or your assets/wealth increases), you can still review and amend it where necessary. It is important however to remember to continue to update your Will when important life events or changes take place: 

1. A Will is revoked by marriage or civil partnership (except for a Will made in contemplation of marriage or civil partnership). If you do marry or enter into a civil partnership, it is vital that you review your Will.
2. A Will is not revoked by divorce, so if you divorce or separate it is vital that you review your Will. It is important to remember that your Will will remain in place following your divorce.
3. A Will is only a piece of paper until a Grant of Probate has been issued meaning that your Will has been proven as being valid. A Grant of Probate allows the Executor of you Will to gather in and distribute the assets of the estate.
4. If assets are held jointly with another person, those assets might automatically pass to the surviving owner if one dies. However, this is not always the case. If you do own joint assets with another person, ensure that you explain your ownership of that asset to your solicitor when drafting your Will.

Trustees, Guardians & Executors

You will need to appoint Executors to your Will and in some cases may need to appoint a Trustee or Guardian. Executors are appointed to administer the estate and ensure the intention of the Will is followed, whereas a Trustee will manage an asset if a beneficiary cant inherit it (for example, a minor cannot take ownership of certain assets) and a Guardian is a person appointed as the legal guardian of a child following a death.  

The Executors role is said to exist forever although in reality their role will end in 12 to 18 months. In contrast to this a Trustees role can run for quite a bit longer depending on the circumstances. It is therefore important to choose wisely when thinking about who to appoint as a Trustee.

The 'Guardianship of Infants Act' states that both a father and mother of a child can appoint a person, or persons, to be guardians of a child following their death. In these circumstances, the Testamentary Guardian shall act jointly with the surviving parent ( unless the surviving parent objects to his or her acting as guardian), so long as the surviving parent is alive.

If the surviving parent does object, or if the testamentary guardian thinks the surviving parent is unfit to have custody of the minor, the testamentary guardian can apply to court for an order.

If there is a non-marital child, the mother is automatically a guardian but the father must apply to Court to be appointed as guardian.

Intestacy

If you die without a Will you are said to die intestate and your estate will be divided according to the terms of the 'Succession Act 1965'. In other words, it will be divided between the next of kin.  Dying without a Will basically means you are not planning for the distribution of your estate and that people you dont want to inherit could actually receive something from your Will.  It also means that you are not planning for tax and could mean that your estate is distributed much less tax efficiently than it would be if you had a Will in place.

A Will is a very important document and ensures that your last wishes are carried out to your satisfaction when you die.  Whilst drafting a Will is not at the top of many peoples To Do list, it is however important to take some time out to review a previous Will or draft a new Will if you have not done so already.

To find out more about drafting a Will, please contact the Wills & Succession Planning team at Poe Kiely Hogan Lanigan Solicitors, who can help you to navigate the preparation of your Will.  

This article is the first in a series of four articles on the importance of drafting a Will. To read the next article on the Rights of Your Spouse, Civil Partner, Co-Habiting Partner & Your Children When Considering Your Will, please click on the link to find out more.  

 


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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