'Where there is a Will, there is a Way!' By Lynch Solicitors

WHY AND how to make a will - think ahead, don't waste time, make your decisions today!

What is a Will?

A Will is a legal document detailing how your possessions should be distributed after death. 

In other words, a Will is a document setting out your wishes or directions for family and friends as to how you want them to deal with your assets after your death.

A Will is a personal matter. It is up to you to decide if you want to discuss the contents of your Will with family members. 

We often recommend it as it may overcome difficulties later if people who benefit (known as beneficiaries) understand your wishes in advance.

When you appoint an Executor, Guardian or Trustee in your Will, it is advisable to let these people know and give them some directions if needed. 

Guardians are people you nominate to take care of your children, Trustees are the ones you nominate to take care of your financial affairs on behalf of minors, and Executors are the people you select to carry out your instructions under your Will.

You may choose the same people to act as Guardians, Trustees and Executors.

WHY SHOULD YOU MAKE A WILL?

Everyone should make a Will. There are many important reasons:

You decide what is to happen to your property after your death. If you do not create a Will, the law dictates how your property is distributed.

Many people like to make gifts of money or particular items for sentimental reasons. These can be included in your Will, whether big or small.

You can choose who is to carry out your wishes by appointing what is called an Executor.

You can nominate people you trust to mind your minor children.

It makes it easier for friends and family if you leave a Will.

No one will ever know if you don’t say what you want in a Will.

Why is it so important?

Many people underestimate the importance of making a Will.

Putting these in place can make things much easier for your loved ones.

Would you go away for a few months without leaving your keys with a neighbour or your children with a childminder?

Why would you not plan for your future care or not look after your family when you are no longer around to do it?

If you don’t plan it, it won’t happen. There is one certainty – we can’t last forever!

WHY SHOULD YOU USE A SOLICITOR to draft a WILL?

There is nothing to say that you must use a Solicitor to make a Will, but it is advisable. 

A poorly drafted Will can be worse than having no Will at all. 

Wills are subject to stringent rules, and this is for an excellent reason – to prevent fraud.

The law has particular rules, for example: a beneficiary should not witness a Will, witnesses must witness you signing your Will, a gift should identify the person benefiting.

Why should a Will be made or Reviewed?

Becoming the owner of property/cash 
Getting married 
Going abroad 
Getting divorced or separated 
Buying a house 
Having children 
Inheriting property (or winning the Lottery!) 
Retiring, getting older or suffering from illness 

WHEN?

Now! They say there is no time like the present to do things.

What is estate and succession planning?

Estate planning is planning how best to transfer assets on death, and succession planning includes estate planning but can also cover retiring from a business.

While making a Will is undoubtedly the first step in planning, other issues may also come into play.

For example, it might be appropriate to make provision for the next generation during your lifetime in certain circumstances.

This might involve the transfer of your business or farm to one of your children working in the business or on the farm.  

You may want to benefit your children as they start their adult lives to help set them up.

It is vital to remember to take measures and retain enough assets to maintain yourself for your lifetime, such as a nest egg for nursing home care or having a right of residence in the family home on the ownership transfer.

Each case should be viewed from a personal, family and tax perspective.

WHAT CAPITAL TAXES do you have to worry about?

Capital Acquisitions Tax [C.A.T.]: C.A.T. is payable by a person receiving any inheritance or lifetime gift.

Gifts or inheritance between Spouses and civil partners are not liable for C.A.T.

Planning is vital to avail of tax thresholds, exemptions or reliefs such as Primary Residence relief, agricultural relief or small gift exemption.

Capital Gains Tax [C.G.T.]: C.G.T. is payable by the person who released the asset. It is payable on lifetime gifts and based on the asset’s value increase from the date of acquisition by the donor to the date of disposal.

While C.G.T. does not usually arise on death, it does apply to lifetime transfers.

Again, planning is essential for retirement, entrepreneurship, business or farm restructuring reliefs. 

Stamp Duty: Stamp duty is payable on the transfer of property during your lifetime. It is not payable where the property is transferred on the death.

Spouses & Children - Inheritance Rights: When a person dies intestate (without a Will), the law dictates how the deceased’s estate is divided.

There are three possible scenarios: spouse and no children – spouse entitled to all of the estate, spouse and children – spouse entitled to two-thirds, and children share the remainder, children only – children share the entire estate

What are the Rights of a Surviving Spouse in a Will?
The Succession Act provides that irrespective of the terms of a Will, a spouse is entitled to a specific share in an estate. This is known as the ‘Legal Right Share’. This Legal Right Share aims to prevent the deceased from disinheriting the surviving Spouse.

The ‘Legal Right Share’ size depends on whether the deceased had children. Where there are children, the Legal Right
Share of the spouse is a 1/3rd of the estate. The Legal Right Share is ½ of the estate where there are no children.

Inheritance Rights of Children 
Children of Civil Partners have the same rights and entitlements as children of a marriage. 

If a parent excludes a child from a Will or does not (as far as the child is concerned) make proper provision for them, they can apply to the Court to make additional provision for them out of the estate. 

The Court will only make provision for an aggrieved child if it is established that the deceased parent has failed in their moral duty to make proper provision for them.

The Courts will look at all surrounding circumstances such as the age of the child, their position in life, the age and position of the other children, the means of the parent, whether the provision was made for the child during the deceased’s lifetime and perhaps the conduct of the child towards their parents.

Postscript
It is always a good time to make a Will or an Enduring Power of Attorney. However, the start of a new year is always an effective time actually to do it.