Wills and administration of estates

Making a Will

The much anticipated changes to the Capital Acquisitions Tax (Gift and Inheritance) regime proved somewhat disappointing in the Budget some months ago which only saw a 24% increase in the tax free threshold for assets transferring from a parent to a child, increasing the threshold from €225,000 to €280,000.  The Budget brought about no changes or reductions to the current rate of tax (33%) or to increasing the tax free allowances for beneficiaries of estates, or recipients of gifts, other than children.

Making a Will is very important as your Will is a legal written document which sets out clearly your wishes and intentions with regard to your assets and possessions (called your “estate”) and provides for the distribution of your property in a clear and unambiguous manner and among clearly identifiable beneficiaries.

A person who dies having made a valid Will is said to have died “testate”.   If you have made a Will you are called a “Testator” (male) or “Testatrix” (female).   A Will allows for a Testator/Testatrix to provide for the special needs of family members and sets out his or her wishes in relation to certain matters which are to take effect on death.

If you die without having made a Will, you will be considered to have died “intestate” and the law on intestacy, pursuant to the Succession Act 1965, decides what happens to your estate which will be divided in accordance with law and not necessarily divided in the manner which you would choose yourself.  The absence of a Will is synonymous with losing control over the distribution of your assets on death because, as mentioned above, the Succession Act 1965 determines who is to inherit, subject to certain rights of spouses/civil partners and children, and who is responsible for the administration of your estate and will pay any debts that you owe and distribute what is left to the people who are entitled to it.   This can, in many cases, be contrary to what you would have wished for, had you made a Will and set out clearly your wishes and intentions in relation to your estate and beneficiaries thereof.

Estate Administration

After you die, somebody has to deal with your estate and if you nominate a person(s) to look after your estate, that person in your Will is known as your “Executor(s)” who will, after your death, make sure that your wishes and intentions are carried out and that all of your estate is distributed in the way that you set out in your Will.   A Will can be reviewed at any time and, as life circumstances change, a new Will can be made in accordance with your current circumstances, provided certain rules are followed to ensure that the Will is valid and that the person making the Will is of sound disposing mind and has the necessary testamentary capacity to make informed decisions.  Your Will should follow a certain format for it to be considered valid.  Notwithstanding what you include in your Will, there are however legal restraints as to what portion of your property must go to a particular person, such as a spouse or a civil partner.

The Executor in your Will must prove your Will to be valid and will usually have to get legal permission from the Probate Office or the District Probate Registry for the area in which you lived at the time of your death, to do this. Permission comes in the form of a document called a Grant of Representation (more often than not a Grant of Probate, if you have left a Will).