17 Ways to Make a Will

types of wills

A will can be drafted to cover any individual, unique circumstance.

Here are some examples of wills:

  1. Gift of an entire estate to one person, making that person executor/trix with a gift over in the event that that person dies within a stated period, for example 30 days, of the death of the testator
  2. Gift of an entire estate to individuals, including children, in equal shares for their own benefit and use absolutely
  3. Gift of an entire estate to brothers and sisters and to the children of a pre-deceased sibling
  4. Gift of an entire estate to parents
  5. Creating a settlement of property on parents by giving them a life interest for their joint lives with remainder over to brothers and sisters
  6. A will settling property on a discretionary trust for the benefit of parents during their joint lives with remainder to brothers and sisters
  7. A will making provision for an elderly brother or sister
  8. A will leaving everything to spouse or partners with substitutional provisions for children in the event that the spouse passes away at the same time in a catastrophic accident eg car crash or airplane going down
  9. A will leaving some of the estate to spouse or partner with residue to children once they reach a certain age eg 18/21/25, but trustees having discretion until the children reach the age
  10. A will leaving everything to spouse/partners and then to Trustees on a discretionary trust
  11. A will leaving everything to Trustees to be held on discretionary trust
  12. A will leaving everting to children after the death of a spouse, with a discretionary trust to benefit a child with a mental incapacity or disability
  13. A will of a single person/divorced/widow/widower with no children leaving all to a large extended family with residue going to grandnieces and nephews who are all under 18 years
  14. A will leaving everything to one person for life with an absolute gift over to someone else
  15. A will leaving everything to a spouse for life with gift over to children
  16. A will for an unmarried couple with minor children, providing that the will is not to be revoked on marriage of the couple
  17. A will leaving everything to children and grandchildren providing for the use of all possible CAT threshold exemptions.

These wills show you what is possible in providing for your loved ones, and they can be adapted easily to match your particular circumstance.

The 17 types of wills above is not an exhaustive list, by any means.

Let me say that again: just because I have listed 17 types of wills does not mean that you cannot have a will made for your particular set of circumstances.

Also, you should also consider changing your will, if you have one, if your circumstances change, as they inevitably will during your life.

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6 Critical Reasons Why You Should Make a Will

 

reasons to make a will

There are many important reasons why you should make a will. Here are 6 of them:

  1. You decide how your assets will be distributed on your death

If you don’t make a will, an intestacy situation arises. This means Your estate will be distributed in accordance with the Succession Act, 1965. This is very unlikely to be as you might want it.

Also, who can administer your estate will be dictated by Court Rules. Again, this may see a situation arise where someone you would not want will be looking after your affairs after your death.

  1. Children-a will allows you to provide for children and the special needs of a loved one

This is especially important when you have minor (under 18) children. Also, with Minor children you will need to consider the need to appoint guardians and/or trustees.

These are people who will look after your children’s assets until they come of age and will make decisions about their health, religion, education etc. if both you and the other parent are involved in a catastrophic accident and pass away at the same time. You may also wish to set up a trust.

  1. Smart tax planning- a will can ensure the minimum amount of tax going to the State, unlike in an intestacy situation where there is no discretion
  2. It is cheaper and faster to administer your estate with a will, rather than an intestacy
  3. You choose who handles your affairs on death rather than having the law decide

The person you choose will be your executor. If you do not make a will the rules of Court will determine who is eligible to administer your estate.

  1. Peace of mind-the peace of mind that comes from knowing that you are not leaving problems behind for your loved ones when you pass away is priceless

This is the most important reason for most people.

Some Important questions to consider

  • Should you appoint more than 1 executor?

It can be a good idea to appoint more than 1 executor (an executor is the person who administers the estate of the deceased)

  • Gift over clause-do you need a “gift over” clause to benefit your grandchildren in the event of your child predeceasing you?

Without this clause in your will whatever you had decided to go to a predeceased child will go to his/her spouse. You may not want this and prefer that it go to his/her child(ren). If that is the case, you need to make provision for this in your will.

Common mistakes when making a will

Some common mistakes when making a will include:

  1. Alternative executors-if you appoint alterative executors your will fails for uncertainty
  2. A witness or his spouse cannot benefit under the will
  3. A will is revoked by marriage, but not by divorce
  4. Lack of clarity causing the will to fail-if a will is poorly worded and the intention or meaning is unclear this can cause the will to fail. And before it fails a dispute may well have arisen as to the meaning or intention of the words in the will and this can lead to an expensive legal dispute with the estate being diminished to pay legal costs.

Trusts

A will trust allows you to put assets into the ownership of trustees for the ultimate benefit of someone else. Trusts can be very useful for different reasons, for example, in protecting assets you wish to pass to a loved one who has had their financial difficulties. Your bequest may be at the mercy of creditors and creating a trust is one way to make provision for this scenario.

Learn more about will trusts here.

Contact Terry now to arrange your will.

Children in Wills in Ireland-What You Should Know

children-in-wills

If an under-age child (under 18) receives a bequest in a will and there are no trustees, or if a child inherits on intestacy, the legal personal representative (LPR) faces the difficulty that there is nobody in whom he can vest the asset or from whom he may obtain a receipt.

(The Age of Majority Act, 1985 provides that a person shall attain full age when he/she attains the age of 18 years.)

This is the most critical reason why a trust should be inserted in a will where there are minor children.

However, if this does not occur all is not lost because section 57 of the Succession Act, 1965 helps out:

 

57.—(1) Where an infant is entitled to any share in the estate of a deceased person and there are no trustees of such share able and willing to act, the personal representatives of the deceased may appoint a trust corporation or any two or more persons (who may include the personal representatives or any of them or a trust corporation) to be trustees of such share for the infant and may execute such assurance or take such other action as may be necessary for vesting the share in the trustee so appointed. In default of appointment the personal representatives shall be trustees for the purposes of this section.
(2) On such appointment the personal representatives, as such, shall be discharged from all further liability in respect of the property vested in the trustees so appointed.

This means that where under-age children inherit and there are no trustees to give a receipt to the LPR the personal representative(s) can appoint trustees, including themselves.

In fact, if no trustees are so appointed the personal representatives are deemed to be trustees for the purpose of section 57.

However, section 57 only applies to the share of a minor, not anyone else who is unable to give a proper receipt to the executors.

The Powers of the Trustee

Trustees are allowed to hold property vested in them under section 57 of the Succession Act, 1965, and their powers are set out in section 58:

58.—(1) Property vested under section 57 may be retained in its existing condition or state of investment or may be converted into money and invested in any security in which a trustee is authorised by law to invest, with power, at the discretion of the trustees, to change such investments for others so authorised.
(2) Where an infant becomes entitled to any estate or interest in land on intestacy and consequently there is no instrument under which the estate or interest of the infant arises or is acquired, that estate or interest shall be deemed to be the subject of a settlement for the purposes of the Settled Land Acts, 1882 to 1890, and the persons who are trustees under section 57 shall be deemed to be the trustees of that settlement.
(3) A person who is sole trustee under section 57 shall be entitled to receive capital trust money.
(4) Persons who are trustees under section 57 shall be deemed to be trustees for the purposes of sections 42 and 43 of the Conveyancing Act, 1881.
(5) Without prejudice to any powers under the said sections 42 and 43, persons who are trustees under section 57 may at any time or times pay or apply the capital of any share in the estate to which the infant is entitled for the advancement or benefit of the infant in such manner as they may, in their absolute discretion, think fit and may, in particular, carry on any business in which the infant is entitled to a share.
(6) The powers conferred by subsection (5) may also be exercised by the surviving spouse as trustee of any property of an infant appropriated in accordance with section 56.

Section 58(2) above sets out the situation when an infant becomes entitled to land in an intestacy situation.

The Land and Conveyancing Law Reform Act, 2009, section 20, updated and clarified the powers of the trustee, and this act significantly amended the law relating to trusts from 1st December, 2009.

20.— (1) Subject to—
(a) the duties of a trustee, and
(b) any restrictions imposed by any statutory provision (including this Act) or the general law of trusts or by any instrument or court order relating to the land,
a trustee of land has the full power of an owner to convey or otherwise deal with it.
(2) The power of a trustee under subsection (1) includes the power to—
(a) permit a beneficiary to occupy or otherwise use the land on such terms as the trustee thinks fit,
(b) sell the land and to re-invest the proceeds, in whole or in part, in the purchase of land, whether or not situated in the State, for such occupation or use.

Part 4 and Part 5 of the Land and Conveyancing Law Reform Act, 2009 deal with trusts of land and variation of trusts.

Section 18 created the new statutory model of a “trust of land”, which covers all forms of trust of land, including where land is vested in a minor, regardless of whether the land vest before or after 1st December, 2009.

Section 19 sets out who are the trustees in each case of trust.

Guardianship

A parent, by deed or will, can appoint another person(s) to be guardian of their children after their death. A testamentary guardian can act jointly with the surviving parent, provided the surviving parent does not object, in which case he/she can apply to court for an order under section 7 of the Guardianship of Infants Act, 1964.

10 Tasks That Newly Appointed Executors Ought to Take Care Of

executors duties

Acting as executor of a loved one’s estate carries with it a huge responsibility.

It shouldn’t scare you off from agreeing to be the executor for a friend or loved one-after all, it is a great honour to be trusted sufficiently by a friend or relation. But you do need to know what an executor is expected and obliged to do.

Your function as executor is to extract a grant of probate to the estate of the deceased and to administer their estate. As executor, your powers and duties date from the date of death of the deceased.

From the date of death the whole estate devolves or passes to you as executors. You have very wide powers under general law, apart from any powers given to you under the will.

An executor may renounce the executorship but once you decide to take on the role of executor you cannot then renounce it at a later stage.

The duties of a personal representative last for life; therefore your obligations as executor are ongoing.

Below is a simple set of guidelines on the powers and duties of executors.

It is set out in very brief and summary form but will give you a good idea of what is involved in being and executor:

  • First duty of executor: disposal of the body of testator
  • Ensure the valuation and protection of the assets of the estate
  • Ascertain all liabilities/debts/taxes and the beneficiaries of the estate
  • Swear an Inland Revenue affidavit for filing with the Revenue Commissioners
  • Extract the Grant of Probate and gather in all the assets
  • Pay the expenses and debts of the estate
  • Prepare administration accounts.

The above is a basic summary of what you will need to do. A good, helpful solicitor will help you with all of the jobs set out above-in fact (s)he will do many of them for you and will guide and advise you on all matters in relation to the administration of the estate.

Your solicitor will also instruct you fully on all those duties or tasks which you alone can perform; (s)he will explain fully all documents and declarations which you are required to sign.

To help your solicitor and to make the administration of the estate as smooth as possible the following 10 tasks will need to be taken care of by you as executor:

  1. Collect financial information and assets from deceased’s home, details of accounts, share certificates
  2. Get death certificate (register death first!)
  3. Gather addresses of beneficiaries and family members
  4. Arrange insurance on property, contents and other insurable items
  5. Sort out or obtain at least funeral/headstone accounts
  6. Remove valuables from property and organise safekeeping
  7. Clear house and arrange for the sale of contents where necessary
  8. Sell car and cancel insurance
  9. Cancel health insurance and obtain any refund, if applicable.
  10. Apply for bereavement grant if appropriate.

See also the role, duties and powers of an executor.

Second Grants of Representation/De Bonis Non Grants

de-bonis-non-grant

A de bonis non grant arises where a personal representative has extracted a primary grant of representation but does no fully administer the estate, for example where he/she dies.

A de bonis non grant is appropriate where the personal representative is alive when the primary grant issues but subsequently dies; a revocation of a grant will arise where the personal representative dies between the time he applies and the grant issues.

A DBN grant will also be required where a property is to be sold and it is then discovered that the property is still registered in the name of the deceased former owner-for one reason or another the personal representative failed to execute a deed of assent to vest the property in the name of the beneficiary. This failure by the personal representative makes it necessary to raise representation once again to the estate of the deceased registered owner by way of a de bonis non grant.

There are 2 types of DBN grants:

  1. if the deceased died testate the appropriate DBN grant will be a “grant of letters of administration with will annexed DBN”
  2. if the deceased died intestate the correct grant will be a “grant of letters of administration intestate DBN”.

The persons entitled to take out a DBN grant will be, on intestacy, as set out in the Succession Act, 1965 and the Rules of the Superior Court, 1986, order 79.

In a testate situation the grant will be given to the next person entitled under the rules referred to above, assuming that the executor has died or renounced, and all other executors have died or renounced.

Documents Required to extract a DBN

To extract a DBN you will need the documents required to extract a primary grant and in addition you will need:

  • the original/primary grant
  • inland revenue form A3 (E) or A3 (C)
  • form D1 where there is immovable property

Other second or subsequent grants can arise where there is unadministered probate and the rights of another executor were reserved prior to the death of an executor; if a will has been proved by an executor and subsequently a codicil to that will is found, a supplemental grant of probate can be issued to the acting executor.

If you find yourself in any of the situations outlined above you should really seek professional legal advice.
By Terry Gorry Google+