A last will and testament is one of those things you probably don’t want to think about on a random holyday at the park Fun or not, we should all consider what would happen to our loved ones if we died. Writing a will is especially important if you’re a parent or have people who depend on you.
A will is a written document that sets out what you would like to happen to your possessions after you die. A will must be signed and witnessed.When you die, your possessions are called your ‘estate’. A ‘testator’ is a person who writes a will. If you die without leaving a will, you die ‘intestate’.
Here you can read information about how to make a valid will, the things you should consider when writing your will, and what will happen if you die without leaving a will.
Reasons for making a will
If you die without making a will, your estate will be distributed according to the law on succession. This means that your estate will be distributed between your surviving family members in the way that is set out in law. How this works is explained in ‘What happens if you die without leaving a will’ below.
If you want to have a say over who inherits all or part of your estate, you should make a will. You can also complete and keep an updated list of the things that you own. You can use a form like our form, Where my possessions are kept. It will make it easier to identify and trace your possessions after you die. You should keep the list in a safe place.
How to make a will
You can write a will yourself, or have a solicitor write it for you. There is no set cost for having a solicitor write your will, and you can get quotations on prices on a solicitor’s website or by calling their offices. You may be able to save money by shopping around.
A solicitor can advise you about your will and can make sure that your will is legally valid. If you write your own will, you should make sure that it is valid. It can only be valid if:
- The will is in writing
- You are over 18
- You are of sound mind
- You sign or mark the will or confirm that you made the signature or mark in the presence of two witnesses, present at the same time if possible (the witnesses do not have to see the contents of the will).
- Your two witnesses sign the will in your presence
- The signature or mark is at the end of the will
Gifts left to a witness or their spouse or civil partner are not valid.
If you want to change your will after you make it, you can add a codicil (amendment or change) to your will; this codicil must meet the same requirements set out above. You can read more about ‘Changing or revoking your will’ below.
Contents of your last will
You do not have to have your will in any set format. However, it is important that the will has the following:
- Your name and address.
- A statement that says you revoke or disown all earlier wills or codicils.
- The appointment of one or more executors, or people who will carry out your wishes in your will after you die, along with their names and addresses.
- Your will should be dated and signed by you and your witnesses. This statement is called an attestation clause.
A residuary clause, is a section in your will that sets out how property not specifically dealt with in the will should be distributed. You may leave a part of your estate to someone, but that gift (sometimes called a bequest) could later found to be invalid. When this happens, that part of your estate becomes part of the residue of your estate, along with other things that are not specifically mentioned in the will.Your residuary clause could say that anything not identified in your will should be left to someone
Signing your will
You have to sign your will in the presence of 2 witnesses. They have to sign the will to attest (witness) that you have signed the will.
If you are unable to sign your will because you cannot write, you can make a mark that should be witnessed like a signature.
If you are physically disabled and are unable to sign or mark your will, you can direct an agent or representative to sign your will for you. Your agent must sign the will in your presence and on your direction and your two witnesses must be present.
What does being ‘of sound mind’ mean?
In order to make a valid will, you must have, in the eyes of the law, the mental capacity to do so. This means you must understand and be able to decide what you are doing. If you have a medical condition that could affect your ability to understand and make decisions about what you should put in your will, you should ask your doctor or specialist to certify that you are capable of making a will.
For example, if you have a history of mental illness, or if you are in the early stages of a condition that can affect your ability to think and understand (for example, dementia), you should ask your doctor or specialist to certify that you are currently mentally capable of making a will.
If you are acting under undue influence, this means that you are acting under pressure from another person or persons. Your will can be challenged on the basis that you were acting under duress when you made it and it doesn’t reflect what you actually wanted.
For example, if you want to leave part of your estate to a solicitor, it is best to write your will with a different solicitor. Otherwise, it could might be alleged that the solicitor put you under pressure to leave them something.
Provisions for your spouse, partner and dependents
Your spouse or civil partner has a ‘legal right share’ to your estate. This means that they are entitled to benefit from your will, even if you do not provide for them in your will. Your children also may have entitlements. Partners (that you were not married to or in a civil partnership with) may also be able to claim a share of your estate.
You can read more about the legal right share of spouses and civil partners.https://www.citizensinformation.ie/en/death/the_deceaseds_estate/what_happens_the_deceaseds_estate.html
If you have property in other countries, you should make a will in each of those countries due to possible differences in succession law.Under EU Regulation 650/2012 on matters of succession (Brussels IV), if you have property in another EU member state, apart from Denmark, you can direct in your will that the law of your nationality should apply to the property.
Changing or revoking the will
If you want to change your will, you and your witnesses must sign or initial your will in the margin of the page beside the changes. You can also change your will in the form of a memorandum or written note that is signed by you and your witnesses that refers clearly to the changes.
To change your will, you can also make a separate document, called a codicil, which is like an update added to the end of your will. This document, again signed by you and your witnesses, should set out clearly and accurately the changes you want to make to your will. These changes are then legally binding.
If you plan to make a lot of changes to your will it might be easier to simply revoke or cancel your current will by making a new one. This can only be challenged if your mental capacity when you revoked your will is called into question.Your will is revoked automatically in certain situations:
- If you marry or enter into a civil partnership, your will is revoked, unless your will was unless the later will was made with the marriage or civil partnership clearly in mind If you make another will, the first will you made is revoked.
- If you draw up a written document that is executed in accordance with the requirements for a will, your first will shall be revoked.
- If you burn, tear or destroy your will, it will no longer be considered valid. Or, if you have someone else destroy it, your will shall be revoked, provided this was done in your presence, with your consent, and with the intention of revoking your will.
What Happens if You Die Without Making a Will?
If you die without leaving a will, then your estate will be distributed in accordance with the law of succession.
This also happens:
- When the will is not valid because it was not made properly
- When a legal challenge to the validity of the will has been successful
The law of succession also applies to assets which are not covered by a will such as where there is no residuary clause
The order in which your estate is distributed in these cases is set out in the Succession Act 1965.
If you are survived by:
- A spouse or civil partner but no children (or grandchildren): your spouse or civil partner gets the entire estate.
- A spouse or civil partner and children: your spouse/civil partner gets two-thirds of your estate and the remaining one-third is divided equally among your children. If one of your children has died, that share goes to his/her children.
- Children, but no spouse or civil partner: your estate is divided equally among your children (or their children).
- Parents, but no spouse, civil partner or children: your estate is divided equally between your parents or given entirely to one parent if only one is living.
- Brothers and sisters only: your estate is shared equally among them, with the children of a deceased brother or sister taking his/her share.
- Nieces and nephews only: your estate is divided equally among those surviving.
- Other relatives only: your estate is divided equally between the nearest equal relations.
- No relatives: your estate goes to the State
Can you give your processions away before you die?
You can give your property away before you die, but you should consider:
- The rules on Capital Acquisition Tax (CAT) mean that the person you are giving your possessions to might have to pay tax. CAT may also be charged on an inheritance.
- If a court finds that you gave away property before you died with the intention of unfairly reducing the legal right share of a spouse, civil partner or the rights of any child, the person who received the inheritance could be made to pay it back to the estate.
Major problems and disputes about wills
When you make your will, you should consider some common problems that result in a gift made in a will being invalid.
- The possession that you want to leave to someone may be lost or no longer exist at the time of your death.
- There is confusion about the identity of a beneficiary. For example, you leave a gift to your cousin, Jim, and you have cousins named Jim.
- If the gift is not clearly identified in your will or it does not conform to its description in the will.
- If you leave a gift to a person who is a witness to your will, that gift will be invalid.
Joint bank accounts
If you have a joint bank account with your spouse, civil partner or child usually the surviving account holder will be fully entitled to the money in the account when you die.
If you open a joint bank account with a relative or friend so that they can help you manage your money and do not intend that person to own the money in the account after you die, you should make this clear when you are opening the account.
Disputes about wills
Most wills are not disputed, but if there is a disagreement, it must be settled in court. The court will give effect to the testator’s wishes as expressed in the will if possible.The testator’s wishes are taken from a reading of the will as a whole, with words and phrases given their ordinary meaning unless they are technical words and it can be assumed the testator meant them to be taken in their technical meaning.
Evidence outside the will, like letters or notes that refer to the will in advance of its making, may be introduced to the court to explain more fully the testator’s intentions and to help discover the true meaning of the will.Because wills can be disputed, it is important that you write your will in simple, straightforward language. Statements which could have more than one meaning should be avoided.
Who all can read your Will after you die.
After probate has been taken out on a person’s will, that will then becomes a public document and anyone can get a copy of the will and the grant of probate of these documents from the Probate Office or relevant District Probate Registry using Form PAS1 . Probate is the process of getting authorisation to represent you and carry out the wishes set out in your will.
The grant sets out the name and address of the executor or administrator of the estate and the name of the solicitor acting on their behalf (if any). It also sets out the gross value and the net value of the estate.
Detailed information about the estate is not normally available to the general public, however, certain people may be able to inspect the Inland Revenue Affidavit or the Statement of Affairs (Probate) SA.2 Form which contains the detailed information. They include:
- A beneficiary who is named in the will
- Someone who is entitled to a share of the estate
- A child who is entitled to bring proceedings against the estate under Section 117 of the Succession Act 1965
Information on obtaining a copy of a will is available on the Courts Service website as well as in the information notes of Form PAS1.The Probate Office also sends copies of the will, the Grant of Representation and the Inland Revenue Affidavit to the Revenue Commissioners.
Personal Application Section
15/24 Phoenix Street North
Tel: +353 (0)1 888 6174 or +353 (0)1 888 6728