The main reason for making a will is to ensure that your loved ones are provided for after your death.  If a person wishes their assets to be distributed in a certain manner after their death, then making a will is the only way to ensure this. Your solicitor will ensure that all legal guidelines are met in the preparation of your will.  Your will should be prepared with the upmost professionalism, as any will deemed invalid by the probate office can result in your assets being distributed on intensity.  Therefore your estate would not be distributed in accordance with your wishes as your will would be deemed invalid.

What should I consider in making my will. 

If you are married and have young children, you should consider who would take care of your children after your death.  Should you make your spouse the soul guardian, or should you appoint another guardian to help with their upbringing and decision making.  This is something you could discuss with your spouse.  If you have young children you should appoint a Testamentary Guardian(s) under the provisions of the Guardianship of Infants Act 1964, where such a person shall act with the legal guardian (if any) in respect of the guardianship of the infant(s) concerned.

Appointment of Executors. 

An executor named in a will is the person responsible for the distribution of the estate.   It is a wise decision to appoint more than one executor, (but no more than three).  Where a number of persons are appointed as executors, the chances are that one or more of them will survive the deceased and therefore be able to act. Furthermore, if one executor is unable or unwilling to act, then one of the other executors should be available to act.   The testator will generally appoint someone who he/she is close to or knows particularly well to carry out his/ her wishes. Therefore, it is very important to ask your intended executor(s) if they are willing to act as executor of your estate.  If they decide to do so you should inform them where the will is held so that they may locate it on your death. Generally, the deceased will leave their will in their solicitors wills safe and take a copy home with them.

CAN I CHANGE MY WILL?

You can change your will at any time during your life time, provided you are of sound disposing mind and you know the estate you are disposing of, and who your are disposing of it to.  If your solicitor has any doubt as to your competency in making your will, they may have you medically assessed by your doctor.

Your solicitor may also ask why you are considering changing your will.  The reason being is that your solicitors will want to ensure that you were not put under any pressure to change you will to benefit a particular person.

ARE THERE ANY TAXES DUE?

There are different tax thresholds for different groups when administrating and estate. You should seek tax advice regarding taxes due on the administration of an estate. Also it may be worth your while before you make your will to enquire what taxes the beneficiaries may have to pay if any, on the distribution of your estate.

Many of us will put a will on the long finger.  Do you want your estate to be administered in a certain way.  If so, then don’t delay, and make the call today.

This article is general in nature and cannot be regarded as legal advice, as it is commentary only.  If you would like legal advice regarding how the law applies to your individual situation, then please do not hesitate to contact Maureen at the office. Crawford Gallagher Solicitor Letterkenny call 074 916 4906 or email info@crawfordgallaghersolicitors.ie

TESTATE/ OR INTESTATE ESTATE

TESTATE ESTATE

Where a person dies testate, they leave behind them a valid document, known as a Will. Their estate is then distributed in accordance with their Will, subject to any claims by a spouse or civil partner for a legal right share, or children under s117 of the Succession Act 1965. At this point the executors appointed under the Will shall take control of the estate.

INTESTATE ESTATE.

Where a person dies “intestate” they die without making a Will. The estate of an intestate is distributed in accordance with the provisions of whatever Act is in force at the date of their death. (Intestate Estate Act 1954 or Administration of Estates Act 1959 or Succession Act 1965)

The next of kin will generally be the person to extract the Grant of Letters of Administration, to probate the intestate estate.

The three most common types of Grants applied for are,

1. Grant of Probate (where there is a Will)
2. Grant of letters of Administration (no Will)
3. Grant of Letters of Administration with Will Annexed (where a person dies having made a Will and a person other than the executor applies for the grant the grant will issue to the person entitled by law.

EXECUTOR/ ADMINISTRATOR’S ROLE

It is the duty of the Executor/ Administrator to administer the estate of the deceased in accordance with the terms of the Will or under the provisions of the Succession Act 1965.

These duties include, collecting the assets of the estate, extracting the grant, discharging the debts and distributing the assets of the estate to the beneficiaries.

WHERE TO LOCATE A WILL

Usually a testator will leave the original Will in the office of the solicitor where they made their Will.  The Will could also be located in the family home or it may be with a family member.

THE NEXT STEP

1. Inform the financial Institution of the death of the deceased.
2. Executor/ Administrator should collect the assets of the estate.
3. Have the estate valued by a reputable valuer (all assets included)
4. Look for a death Certificate
5. Ascertain the details of the beneficiaries
6. Insure the estate
7. Instruct a solicitor

Once all assets of the estate are gathered your solicitor can apply to the Probate office for a Grant of Probate. The solicitor will prepare the necessary documents to extract a grant of probate and these documents shall be submitted along with the Original Will and the probate fees. These documents shall be examined by the Probate office thoroughly and if there is a problem the probate office shall have the documents corrected and resubmitted to the probate office.  Once all documents are in order a grant of probate will issue to the solicitors office and the solicitor then informs the executors/ administrators to have the estate distributed.

All debts and liabilities must first be paid out of the estate.  The executor/ administrators then distribute the estate in accordance with the Will to the beneficiaries.

Please note that where a beneficiary lives outside the estate, the solicitor is duty bond to retain their benefit under the will or intestacy until a tax return has been made to revenue commissioners, and any taxes due must be paid before the beneficiary receives their benefit.