Key elements for a Will to be Valid in Ireland
Many people tend to put off making a Will until they feel like they have to. Making a Will ensures that, when you die, your property and other possessions go to the people that you want them to go to.
What is a Will?
A Will is a formal written document which sets out how a person wishes to dispose of his or her property after they die. Your Will outlines what you want to happen to your possessions, including any money or property that you own, after you die. If your Will is valid, any debts that you owe will be paid from your estate, and the remaining assets will be distributed to the people named in your Will.
Why is it important to make a Will?
You do not have to make a Will however if you die without a Will, your property and possessions will be distributed in accordance with the law of succession. See “What happens if you die without leaving a Will” below for further information on this.
Can I make my own Will in Ireland?
Yes you can however there are a myriad of technical issues which the Will should address for it to be deemed valid. For instance, the Will must be in writing and signed by the testator in front of two witnesses and if this does not happen then it may mean that the Will is invalid and your assets will be distributed in accordance with the law of succession.
What happens if you die without leaving a will?
If you die without leaving a will, then your estate will be distributed in accordance with the law of succession. The law provides that your spouse or civil partner is entitled to your entire estate if there are no children.
If you leave a spouse or civil partner and children, your spouse or civil partner gets two-thirds and one-third goes to your children. If you do not have a spouse or civil partner, your entire estate goes to your children.
If you do not have a spouse, a civil partner or children, your parents are entitled to your entire estate. If both parents are deceased, then your estate is divided between your brothers and sisters (if any brother or sister dies before you and leaves children, then those children (your nieces and nephews) take their parent’s share).
If you are survived by nieces and nephews only, your estate is divided equally among those surviving. Where no nieces and nephews, then your estate is divided equally between your nearest equal relatives. Finally, if no relatives, then your estate goes to the state.
What are the basic elements that every Will must address?
When we draft a Will for clients, we always ensure to consider the following:
1. Name and Address of testator
This is obvious and the name and address of the testator should be included in the Will.
2. Revocation of previous Wills
In the Will, the testator should revoke all previous Wills. If there is foreign assets be careful not to revoke any foreign Wills.
3. Appointment of Executors
Choose the person or persons best suited to carrying into effect the terms of your Will. An advantage of making a Will is that you get to choose the person(s) best suited. A minimum of two executors is recommended and, if you are a senior citizen, at least one of those should be younger than you.
4. Appointment of Trustees (if appropriate)
In very simply terms, a trust offers a mechanism of managing money or property for a person (or a group of people) who may not be able to manage or in a position to manage the money or property for themselves (i.e. under the age of 18 years or who have a mental disability). The assets are placed in a trust. The people who look after the Trust are known as trustees and the person who benefits from the trust is known as a Beneficiary. A Trust is created by a Will and takes effect on a person’s death or by a legal document known as a “Deed of Trust”.
An executor can also be a trustee. Your Will should give your trustees enough powers to allow them to be flexible in deciding what maintenance and other payments should be made for the benefit of beneficiaries who are under the age of 18 years or who have a mental disability.
5. Appointment of Guardians (if appropriate)
A Guardian is the person you select to take over your role as parent in rearing your children who are under 18 years of age at the time of your death.
6. Administrative clauses and empowerment clauses
7. Specific / pecuniary legacies
The usual format is:
- Cash legacies e.g. to relatives, friends, charities.
- Bequests of specific property e.g. jewellery, furniture, etc.
- Residuary bequest (anything that is left over which may comprise most of your estate).
It is important to note that the law imposes certain restrictions on how you may deal with your estate where you have a spouse/civil partner and/or children. These restrictions should be borne in mind when deciding who gets what.
8. Residuary clause
A properly drafted residuary clause that deals with all eventualities.
10. Signature of testator
11. Attestation clause
The final element in any Will should be the attestation clause. No writing should be inserted after the signature. It is, however, interesting to note that the Succession Act does not require a form of attestation clause and the absence of a attestation clause is not fatal to the validity of the Will however it is good practice to always include one.
12. Two Witnesses
This should include the signatures, the witnesses’ names, their address and the descriptions of the two witnesses. Those witnesses must attest by their signatures the signature of the testator in the presence of the testator but not necessarily in the presence of each other.
It is vital that the witness to a Will is not a beneficiary under the Will or the spouse or civil partner of a beneficiary under the Will.
The insertion in a Will of the above “building blocks” will not guarantee a valid Will reflecting the testator’s intentions, however, their consideration should help to focus the writer’s mind and lead to that result.
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