Tips When Making Your Will

Everybody’s situation is different and deserves to be discussed individually but there are certain nuggets of advice that will apply to most situations:

  1. Make your will for today’s circumstances, not based on a prediction of what your circumstances will be if you live to 90 years of age. 
  2. Amend your will regularly.
    If your circumstances change, you should amend your will.  For example, if you become a parent, if you have more children, if you buy a property, sell a property.  You may also choose to amend your will if the circumstances of your beneficiaries change.
  3. Think about ‘needs’ rather ‘obligations’ when dividing your assets. 
    If you have 3 children, should you divide everything equally between them?  Most people do but sometimes this may not be wise. Consider their individual circumstances, wealth, health, and their future prospects.
  4. Use a solicitor.
    Making a will is usually easier and more cost effective than people think if professional advice is sought.  Yes, online and DIY wills are widely available and it’s possible to write a will using one of these. However, it’s also possible to make costly errors.  Give your will the time and attention it deserves.
  5. Understand the inheritance consequences of marriage breakdown.
    In the 1960’s when Charles Haughey was Minister for Justice, he argued that the right to disinherit a spouse was unacceptable under any circumstances.  The Succession Act came into effect in 1965 and to this day, this allows a surviving spouse to claim a fixed share of a deceased’s spouse estate, even if the will has made no provision for the spouse.  There may be instances where a married couple have separated and have new partners but haven’t formally divorced.  This certainly can cause problems.  Anyone in this situation is advised to take immediate legal advice.
  6. Consider the tax implications of inheritance.
    If you receive an inheritance from your spouse or civil partner, you are exempt from Capital Acquisitions Tax.
    Couples who aren’t married or in a civil partnership will be treated as strangers for Capital Acquisitions Tax purposes in terms of inheritance. Cohabiting partners pay tax at 33% on gifts/inheritance over €16,250.  This applies even if a partner has provided for the other person in their will.
    There is a redress scheme where a financially dependent cohabitant may be able to apply to the courts for in certain circumstances.  In order to apply for redress, you must be a qualified cohabitant, that is, you must have been:
    –  A cohabitant for at least 5 years or
    –  A cohabitant for 2 years if you have had a child with your partner
  7. Don’t forget your non-financial wishes.
    When writing your will, include any non-financial wishes you may have, for example:
    –  Who would look after your children?
    –  What are your wishes for your digital assets? i.e. What would you like to happen to your social media – should they be closed down or memorialised?  Are there passwords, security codes etc. that should be passed on?
  8. Consider an Enduring Power of Attorney (EPA).
    An EPA should be discussed as part of succession planning and the will making process.  It is a legal document that gives certain powers to a person appointed by you, to make decisions and act on your behalf in legal, financial personal care and medical matters.  An EPA only becomes active if you become mentally incapacitated. The scope of the EPA may give general authority to do anything that is lawful and in your best interest, or it might only give authority to do specific acts on your behalf, for example, legal, financial, housing, rehabilitation or personal care matters.
    In relation to personal care decisions – these must be made in your best interests, must be in accordance with what you would have been likely to do and the attorney must consult family members and carers in making these decisions. The attorney is considered to be acting in your best interests if he/she reasonably believes that what he/she decides is in your best interests.
    We are an ageing population now.  While this is great news, it also brings about its own challenges and hence, the increased need for EPA’s.