A will is a witnessed document that sets out in writing the deceased's wishes for his or her possessions, (called his or her 'estate'), after death.
It is important for you to make a will because if you do not, and die without a will, the law on intestacy decides what happens to your property. A will can ensure that proper arrangements are made for your dependants and that your property is distributed in the way you wish after you die, subject to certain rights of spouses/civil partners and children.
It is also advisable to complete and keep updated a list of your assets. You can use a form such as our form, Where my possessions are kept. It will make it easier to identify and trace your assets after you die. You should keep the list in a safe place.
If you have made a will, you are called a testator (male) or testatrix (female). A person who dies having made a valid will is said to have died 'testate'. If you die testate, then all your possessions will be distributed in the way you set out in your will. It is the job of the executor or executors you named in your will to make sure this happens. There are legal limits as to how much of your property goes to which person, as set out in law in the Succession Act, 1965. An executor can be a beneficiary under the will. In other words, the executor can also inherit under the will.
After you die, somebody has to deal with your estate, by gathering together all your money and possessions, paying any debts you owe and then distributing what is left to the people who are entitled to it. If you leave a will before you die, one or more of the executors you named in your will usually has to get legal permission from the Probate Office or the District Probate Registry for the area in which you lived at the time of death to do this. Permission comes in the form of a document called a Grant of Representation.
If you did not name any executors in your will or if the executors are unable or unwilling to apply for a Grant of Representation, documents called Letters of Administration (With Will) are issued. When your estate is distributed, the legal rights of your spouse/civil partner and children, if any, will be fulfilled first after any debts are paid before any other gifts are considered.
A person who dies without a will is said to have died 'intestate'. If you die intestate, this means your estate, or everything that you own, is distributed in accordance with the law by an administrator. To do this, the administrator needs permission in the form of a Grant of Representation. When a person dies without a will or when their will is invalid, this Grant is issued as Letters of Administration by the Probate Office or the District Probate Registry for the area in which the person lived at the time of death.
The legal rules governing the distribution of your property apply:
In these cases, after debts and expenses have been deducted, the estate is distributed in the following way.
If you are survived by:
It is possible to draw up a will yourself or you can hire a solicitor to help you. For a will to be legally valid, the following rules apply:
These are legal requirements and if they any of them are not met, the will is 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 do not have to have your will in any set format. However, it is important that the will has the following:
If you are unable to sign your will due to ill-health or illiteracy, it is acceptable for you to sign your will by means of a mark.
If you are physically disabled to the extent that you are unable to sign or mark your will, it is possible for you to 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. You then adopt this signature as your own.
In order to make a valid will, you must not only set out your wishes in a written and witnessed document, but you must also have, in the eyes of the law, the mental capacity to do so. This means you must make your will with "understanding and reason" and not be suffering from mental conditions such as delusion, insane suspicion or aversion.
It is your mental condition at the time you made your will is that legally relevant. If you suffer from any mental disorder, it is important that evidence is left with your will (for example, from a doctor) that proves you were mentally competent at the time you made the will. Otherwise, your will can be open to challenge.
Your will can also be challenged on the basis that you were acting under pressure or undue influence when you made it so it is important that you get independent legal advice and not use the services of a solicitor of any potential beneficiary of your will.
If you want to change your will, you and your witnesses must sign or initial the 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.
However, if you plan to make a lot of changes to your will, instead of adding a codicil, it might be easier to simply revoke or disown your current will and make a new one, using the same procedures.
It is always possible for you to revoke your will. This can only be challenged if your mental capacity when you revoked your will is called into question.
Your will shall be revoked automatically in certain situations:
In general, you are free to dispose of your belongings or estate as you wish, but your will is subject to certain rights of spouses/civil partners and other more limited rights of children. These rights are set out below.
If you have left a will, and your spouse/civil partner has never renounced or given up his/her rights to your estate, and is not "unworthy to succeed" in legal terms, then that spouse/civil partner is entitled to what is called a "legal right share" of your estate. This legal right share is:
Your spouse/civil partner does not have to go to court to get this share, as any executor is obliged to grant this share where applicable. You can also make a bequest in your will that increases your spouse's/civil partner's legal right share, although if you do not specify that this gift is meant to be in addition to his/her legal right share, the executor may consider it part of that share and not an extra element to it. Your spouse/civil partner can choose to take either the assets specified under the will or his/her legal right share. The executors must inform your spouse/civil partner in writing of his or her right to choose between these two options and your spouse/civil partner must exercise this right within 6 months of receipt of notification or within 12 months of the taking out of the Grant of Representation.
It is possible for a spouse/civil partner to renounce his/her rights to the legal right share. This can form part of an agreement prior to marriage/civil partnership, for example, in the case of a second marriage, or the spouse/civil partner may set aside his or her rights in order to favour any children. However, any such renunciation may be ignored in certain circumstances, for example, if there is evidence of undue influence or evidence that the spouse/civil partner did not understand what he/she was doing or did not have independent legal advice.
If a couple is separated, a renunciation of each other's right to the legal right share is usually included in a separation agreement. Divorce or dissolution of a civil partnership, however, automatically ends succession rights.
Cohabiting partners have no automatic legal right to each other's estates, although under the redress scheme for cohabiting couples introduced by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 a qualified cohabitant may apply for provision to be made from the estate of a deceased cohabitant. Cohabiting partners can make wills that favour each other. These wills, however, cannot cancel out the legal rights of a spouse/civil partner if someone is separated but not divorced or their civil partnership dissolved.
Being judged "unworthy to succeed" is relatively rare, and would arise, for example, if the surviving spouse/civil partner had murdered or committed certain other serious crimes against the deceased. It could also apply if the spouse/civil partner had deserted the deceased for at least two years before death.
Unlike a spouse/civil partner, children do not have any absolute right to inherit their parent's estate if the parent has made a will. Children born inside or outside marriage and adopted children all have the same rights and there are no age restrictions.
However, a child may make an application to court if he/she feels that he/she has not been adequately provided for. It is important to seek legal advice before making such an application. An application must be made within 6 months of the taking out of a Grant of Representation. The court then has to decide if the parent has failed in his/her duty to the child in accordance with the needs of that child. Each case is considered individually, but it is important to remember that the legal right share of the spouse cannot be infringed in order to give the child a greater share of the estate. It can, however, reduce the entitlement of a civil partner.
The surviving spouse/civil partner may require that the family/shared home be given to him/her in satisfaction of his/her legal right share, although if the house is worth more than the legal right share, the spouse/civil partner may have to pay the difference into the deceased's estate. A court may decide that this sum does not have to be paid if it would cause undue hardship to the spouse/civil partner or dependent children.
If a court finds that the deceased person gave away property before he/she died with the intention of defeating the interest of or unfairly reducing the legal right share of a spouse/civil partner or child, a court order may be issued to the person who received the property, making that person a debtor of the estate, and requiring them to pay back an amount to the estate.
Remember that any legacy or gift in your will could fail for many reasons.
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 or will-maker's wishes as expressed in the will. The testator's wishes are derived or taken from a reading of the will as a whole, with words and phrases taken in their ordinary meaning unless they are technical words and it can be assumed the testator meant them to be taken in their technical meaning. Extrinsic evidence, or evidence outside the will, such as 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 ascertain the true meaning of the will. Where two interpretations of a provision in the will arise, the court will lean in favour of the interpretation that upholds that bequest.
Because wills can be disputed, it is important that you write your will in simple, straightforward language.
After probate has been taken out on a person's will, that will then becomes a public document and a copy can be obtained by anyone from the Probate Office or relevant District Probate Registry. The Probate Office also sends copies of the will, the Grant of Representation and the Inland Revenue Affidavit to the Revenue Commissioners.
Joint bank accounts or joint ownership of property are valid ways of deciding the fate of your assets in your own lifetime, but making a will can eliminate most potential disputes.
Where joint bank accounts are opened with a spouse/civil partner or child, it is presumed that one party will be fully entitled to the money in the account when the other party dies. Disputes can arise, however, if someone, perhaps an elderly person or a person with a physical disability, opens a joint bank account with a relative or friend so that the relative or friend can manage his or her finances for him or her. This is because the owner's intention may or may not have been to benefit the relative or friend. A decision in such a case would depend on the intention of the people involved, the amount they each lodged into the account and the terms of their contract with the bank. It is advisable for people with joint accounts to make clear in their contract with their bank or in their will what their intentions are for the money in such accounts.
A solicitor will be able to help you draft a will or you can write it yourself. Flac have produced a useful booklet entitled Wills and intestecy (pdf) whch can be downloaded here.
If you are an executor seeking probate, you may make a personal application for a grant of probate to the Probate Office or to one of 14 District Probate Registry offices. You should go to the District Probate Registry Office in the area where the deceased lived at the date of death. If the deceased lived at the time of his or her death in Dublin, Meath, Kildare or Wicklow or lived outside Ireland, application for a grant of probate must be made to the Probate Office in Dublin.
Personal Application Section
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Tel:+353 (0)1 888 6174 or +353 (0)1 888 6728
If you have a question relating to this topic you can contact the Citizens Information Phone Service on 0761 07 4000 (Monday to Friday, 9am to 8pm) or you can visit your local Citizens Information Centre.