No-one wants to think about dying, but it will happen to us all. This stark reality means planning for what happens after death is something everyone should do.
One interesting case which highlighted the dangers of “home made” stressed the importance of a properly drafted will:
The making of a last will and testament is one of the most important tasks most people face and unfortunately it is one often approached in haste and without due consideration for its effect. A primary purpose of a will is to make a definitive statement regarding the disposition of a person’s assets on the event of their death. A properly drawn up will, prepared with the benefit of legal advice provided by a solicitor, should ensure that the testator’s wishes for the disposition of their estate will be fully complied with.
There are many misconceptions about wills and what happens when you die, so it is worth giving thought to a plan and taking advice where necessary. For example, some believe that a gift of property in a will can take effect before the death of the owner. Another misplaced fear we hear from time to time is that if you do not make a will, all your property is transferred to the Government on death.* Neither are true.
However, it is important to make a will so that your own wishes are implemented. Otherwise, the default rules in the Succession Act apply, which could cause difficulty for your family. Expert advice is crucial in planning a will, particularly where you have significant assets, specific wishes or family members to consider.
The fear of losing control of your own estate sometimes leads people to make a “home made” will. Failure to comply with the rules which govern how wills have to be made could make your will, or part of it, invalid or more difficult to implement. Any court application that might be necessary could be costly and reduce the value of your estate, so it’s important to be cautious.
Here are 5 tips for thinking about what should be in your will and making it happen.
- Act now. People often delay making a will for the simple and understandable reason that doing so involves unpleasant thoughts of death. But if you have never made a will it’s important to take action. Make a list of your assets and family members to help take stock of what needs to be divided and to whom. These decisions can be difficult but make your best effort – your solicitor will advise you on any problems and draft a will to reflect what you have decided. You can always change and update your will if your wishes or circumstances change.
- Consider your legal obligations. The law allows a lot of freedom in what you put in your will, but provides rights to certain people if you do not leave them anything, or enough. It is crucial to consider any spouse, cohabitant or children (even if now adult) when making a will. Spouses have a specific “legal right share” that can be claimed if you leave them less. Cohabitants and children don’t have a specific legal right share but can apply to the courts if they feel that they were not left enough, or anything, in your will. You will also need to consider any previous relationships or family law issues that might apply. If you ever placed a child for adoption or have step-children you should take specific advice.
- Pick executors and guardians. Your executors will be responsible for implementing the provisions of your will. You will also need to appoint trustees and guardians if you have children who are minors when you make your will. Making these choices is a frequent reason for delaying the making of a will but it is important to face up to the choice and make it.
- Think outside the will. If you own assets with a significant value that might benefit from tax rules, like a family business or farm, tailored tax and legal advice is important as part of an overall estate planning strategy. It may be time to consider the transfer or phased transfer of certain assets during your lifetime for tax efficiency purposes. There may be pension or other financial products you should consider. You should also think about an enduring power of attorney that would appoint someone to look after your financial and other affairs if you become unable to do so yourself. The law on advance healthcare directives (known as “living wills”), which record your wishes on healthcare and treatment, will change soon so you might want to consider making one along with your will when the time comes.
- Keep it under review. Making your first will is only the beginning. Any change in circumstances, such as marriage, divorce or the birth of children may have a significant effect on your will and your wishes. An executor or intended guardian might die or your relationship with them might change. After any significant life event, think about what is in your will and whether it needs to be updated.
These tips should help you identify the issues you need to think about so that you can make your first will but already you are likely to have questions, such as how and why to chose executors and guardians or what happens if someone wants to contest a will. As always, you should seek advice sooner rather than later.
Making a will can be a quick and simple procedure but many aspects of your life and circumstances can impact on your wishes and decisions. Probate, the area of the law that deals with your estate after death, is complicated. The above is a brief outline of some of the main points you should consider but it is far from comprehensive. Specific advice should always be taken when planning your will.
PG McMahon Solicitors have been drafting and implementing wills and advising clients on estate planning for decades. We have extensive experience in advising on wills, including challenges to them.
* The fear that the government might inherit an estate is not entirely without foundation, but it rarely happens. The law says that if no-one inherits someone’s estate the State is the “ultimate intestate successor”.