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.

Why You Should Avoid Drafting Your Own Will-2 Million Reasons

The late poet and author, Dr. John O’Donohue, made his own will without the benefit of legal advice.

how-to-make-a-will

He was a very intelligent man. But he really needed to see a solicitor to have his will drafted.

Because in December, 2011 Justice Gilligan in the High Court declared the will he had drafted void for uncertainty and the entire estate passed to the testator’s mother.

Justice Gilligan, in his judgment, stated that

The Testator has unfortunately provided an illustration of exactly how a person should not make a will. While there can be little doubt but that the Testator was a man of considerable learning, the fact that he did not benefit from legal advice or assistance is evident from the will he drew up. Not only was it deficient in terms of the lack of certainty as to his intention but moreover he unwittingly made the classic error of having two of the intended beneficiaries act as witnesses to his signature, thereby depriving both as a matter of law from benefiting under the terms of the will.

 

As an introduction to his Judgment Judge Gilligan stated:

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.

 

Courts can decide what the intentions of the testator were where there is doubt as to interpreting from the will the intentions of the testator and the Court’s duty is weighted by the presumption against intestacy.

 

However in this case the Court was unable to decipher the intentions of Dr. O’Donohoe, even though it held that the will was valid insofar as the requirements of section 78 of the Succession Act, 1965 were met.

 

Once the will was held to be void the entire estate passes to the mother of the deceased in accordance with section 68 of theSuccession Act, 1965.

 

You can read the entire High Court judgment in O’Donohoe v O’Donohoe here.

Any money that may have been saved in not obtaining the assistance of a solicitor to draft the will in the first place was swamped into insignificance by the legal costs spent going to the High Court to have this dispute resolved.
By Terry Gorry Google+

Making a Will in Ireland-50 Facts You Should Know

how-to-make-a-will

Here are 50 things you should know about making a will:

  1.  The requirements for a valid will are set out in section 77 of the Succession Act, 1965.
  2. To make a will you  must be of sound disposing mind and at least 18 (or if younger, married)
  3. If you don’t make a will an intestacy situation arises; this means that your property will be distributed in accordance with the Rules of the Superior Courts and the Succession Act, 1965
  4. Making a will leads to a cheaper and quicker administration of the estate through a Grant of Probate
  5. If you leave a benefit in your will to your child who predeceases you the benefit will go to his estate, not to his children (section 98 of the Succession Act, 1965)
  6. You can prevent this happening by making provision in your will that the benefit will go to, for example, your child’s children
  7. You can engage in tax planning/minimisation of capital acquisitions tax by making a will
  8. Your choice of executor is critical-(s)he handles your affairs and extracts the grant of administration
  9. You can make as many wills as you want
  10. The only will that counts though is the last one before you pass away
  11. Your will must be in writing-it could be carved in stone
  12. You must sign it at the end of the will and your signature must be witnessed by 2 people
  13. Your witnesses cannot benefit from your will so if you intend leaving either one (or both) something get a different witness(es)
  14. Your will must contain your name and address
  15. Your will must be dated
  16. Your will should revoke all previous wills (if any)
  17. A list of legacies refers to your money or goods
  18. A list of devises in your will is a list of your real property
  19. Your will is not revoked by divorce
  20. Your will is revoked by marriage
  21. You cannot appoint alternative executors because your will will fail for uncertainty eg “I appoint Mary or Sean to be my executor”
  22. If you have children under the age of 18 you should appoint trustees and/or guardians
  23. The spouse of any of your witnesses cannot benefit from your will
  24. If an intended beneficiary predeceases you and there is no clause in your will dealing with the residuary of your estate that benefit will be distributed as if you died intestate
  25. Your child can bring a legal action against your estate under section 117 of the Succession Act, 1965 if you fail in your “moral duty” towards him/her
  26. Your spouse has a legal right to a share of your estate thanks to section 111 of the Succession Act, 1965
  27. If you make a will your spouse is entitled to  1/3 of your estate if you leave children and ½ of your estate if you have no children
  28. If you don’t make a will your spouse is entitled to 2/3rds of your estate if there are children and the whole shooting match if there is no children
  29. Children referred to at 26, 27, 28 above includes martial and non marital children and adopted children
  30. Your spouse can cease to be a spouse in 4 ways:By renunciation (section 113, Succession Act, 1965), By separation (Judicial Separation and Family Law Reform Act, 1989 and Family Law act, 1995), By divorce (Family Law(Divorce) Act, 1996), By unworthiness to succeed (Succession act, section 120)
  31. If your will is valid, there is a presumption of testamentary capacity
  32. The test for testamentary capacity was set out in an 1870 case:Banks v Goodfellow
  33. There are 3 aspects to testamentary capacity: a) you must understand you are making a will to dispose of your assets, 2) you must know the extent of your estate, 3) you must be able to give consideration to those who might expect to benefit from your will
  34. Certain situations will give rise to a presumption of undue influence; generally where the relationship of trust and confidence existed eg doctor/patient
  35. Your children are not entitled to any specific share of your estate, unlike spouses (see 26 above)
  36. If you don’t make a will though your children (strictly “issue”) are entitled to 1/3
  37. Your children can bring a legal action against your estate under section 117 of the Succession Act, 1965 for your failure to discharge your moral duty to them
  38. The time limit for bringing such an action is 6 monts; and it is a strict one
  39. You can create a trust in your will
  40. A trust is an equitable obligation binding someone (a trustee) to deal with your property for the benefit of beneficiaries whose identity may not be known yet
  41. Your trustees will be the legal owners of your trust property but they must carry out the terms of the trust which you will decide
  42. If your trust property is “real property” the trust must be evidenced in writing
  43. A trust is not a legal entity so cannot be bound by a legal contract
  44. The Land and Conveyancing Law Reform Act, 2009 has made huge changes in trust law in Ireland
  45. Your estate is administered by your personal representatives-an “executor” in a testate situation and an “administrator” in an intestate situation
  46. Your executor’s job is to extract a grant of probate to “prove” the will and deal with your estate
  47. Your executor does not have to act and may renounce; but once (s)he takes on the role (s)he can’t renounce later
  48. Your executor’s powers come from the will itself and the Succession Act, 1965
  49. Capital acquisitions tax is the tax payable by beneficiaries of your will
  50. The amount to be paid can be reduced/minimized because there is a wide range of reliefs and exemptions, provided you make a will.

You can have your will drafted quickly and easily-simply use the contact form to arrange a consultation.
By Terry Gorry Google+