Making a Will.
Thursday, 12 November 2009
No one likes to think about what will happen when they die. However, 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 and children.
There are many things to consider when writing a Will and whilst it is possible to write your own Will it isn't usually advisable as it is easy to make a small mistake that would result in the Will being invalid. It is best to enlist the help of a specialist when preparing your Will as there are certain legal formalities that must be followed to ensure the Will is legally valid. Seeking expert advice can also help you minimise the portion of your estate that is paid as inheritance tax on your death. See Writing a Will for more details.
Solicitor Clifford Sullivan from www.lawplus.ie
Clifford qualified as a Solicitor in 1982. He obtained his degree from Trinity College in 1979, and completed his studies with the Law Society of Ireland in 1982. He established his law practice of Clifford Sullivan & Co in 1989. LawPlus was founded in 2007 by him self and his partner Karl Hutchinson.
Clifford explains how www.lawplus.ie works and how it differs from other solicitors:
LawPlus is a highly innovative and progressive legal franchise that offers a highly flexible alternative to working for a 'traditional' law firm.
The concept is that Solicitors work from a local base and are fully supported by the latest in IT, telecommunications, case management and web-enabled software as well as by first-class marketing, finance, administration and client support departments.
LawPlus is driven by a client-focused, plain speaking approach to the law and embraces new technology to provide legal services to a broad portfolio of regional and national clients yet provides consistent, streamlined and most importantly standardised procedures, which means that whatever LawPlus office you instruct you are guaranteed a high standard of service delivery.
The LawPlus concept is a simple one: the delivery of legal services to the client when, where and how the client wants. Most Irish people are daily users of the internet and we have developed online processes to increase efficiencies and to facilitate the client. We therefore have created processes whereby clients can instruct us online; they are kept fully informed of progress on their file. Traditionally, lack of communication with clients is a common failing of the legal profession. We have sought to overcome this, and our clients are given 24/7 online access to their file. Clients are also notified by SMS or email of actions on their case.
Our systems have powerful software tools built into them which allow for great efficiencies both in the way that we operate and the way that we can deliver a top quality service to our clients. We are in the process of developing a franchise network of lawyers across the country so that the LawPlus concept and service offering can be delivered nationwide
What exactly is a Will?
A Will is a legal document that you sign whereby you declare how your property is to be distributed upon your death. It also for example appoints a person to act as Executor ( the person who has to carry out the directions in the Will) and in the case of a person with a young family, will appoint testamentary guardians to look after the children in the event of the parents dying
What are the requirements for a Valid Will?
Only a person of 18 years or over can make a Will; a person who makes a Will is called a testator(male) or testatrix ( female); the testator or testatrix must be of sound mind and must not have been forced or coerced into the making of the Will. The Will must be in writing, and be signed by the testator or testatrix whose signature must be witnessed by 2 people who are not receiving a gift under the Will.
Why should people make a will?
If you don't make a Will, the legal rules of intestacy apply (Intestacy rules set out how a deceased person's assets are divided if he or she has made no Will or has not made a Will which has effectively disposed of all his assets). Under intestacy rules, in the case of a single person without children, the parents will inherit, or if no parents, the siblings will inherit equally. The testatrix (person who makes the will) may not want this to happen and in making a Will can choose to whom the estate is to be left. There may for example be a sibling whose financial circumstances are more difficult than the others, but on intestacy it will go equally; in a Will, you choose.
A single person may be co-habiting, but under law to date ( may be changing under the Civil Partnerships Act ), the partner has no right at law to inherit, so a Will is essential
Where there are children, a Will should be made in almost every situation. Testamentary guardians need to be appointed, and there can otherwise be dispute about who should be the guardians. If the family home is not in joint names and the spouse who owns it dies without making a Will, under the rules of intestacy the children have a right to a share of the estate and the surviving spouse may not be able to sell the house if that was needed. Making a Will leaving the property to the other spouse would resolve that problem.
Where people are legally separated, or divorced, the divorce Order or order for Judicial Separation will block access to the other spouse's estate. Once this is done, a new Will needs to be made, to give effect to the testator's current intentions and wishes.
A Will can be changed upon any change of circumstances for an individual, so long as the requirements are met for a valid Will i.e. still of sound mind etc
Inheritance tax is the tax paid by a beneficiary on the inheritance received from your estate. In simple terms this is everything that you own at the time of your death, once you have taken away anything that you owe.
Writing a Will can minimize tax payable by a beneficiary, especially in a large estate. Certain things can be given to particular people and organisations without inheritance tax being charged on them. This then allows you to provide more money for the people you want to receive it rather than paying it to the taxman.
Included in your Will can be a legacy you wish to leave to particular organisations or charities. This could be a specific amount of money or even a valuable item, for example a piece of jewellery. Alternatively you could leave a contingent bequest. This is the legal term for a gift left in your Will that depends upon the occurrence of an event which may or may not happen.
By making a Will the desired recipients of your assets gain access to them far more quickly than if there is no Will in place. This means that they can use any money you have set aside for funeral costs or inheritance you have left them to pay for the arrangements, without having to use their own money.
Within your Will you can make known your wishes. For example, whether you want to be buried or cremated, where you want the funeral to take place, and any specific hymns or readings you would like included.
Is there a recommend age to make a will?
You have to be at least 18.
What things should a will contain?
Here is a check list that you should consider:
. Who do you want to leave your assets to when you die?
. How do you want to divide your property between your loved ones, friends or favourite charities?
. Are there any conditions you want to attach to these gifts such as your children / grandchildren having to reach a certain age before they inherit their share of your estate?
. Do you wish to leave a discretionary trust? A discretionary trust means that the trustees have discretion as to when the capital is handed over.
. Do you wish to leave a protective trust? A protective trust is designed to protect a beneficiary from themselves. You can insert a clause to disqualify someone from eventually inheriting if they sell their interest or become bankrupt.
. Do you have any particular wishes for your funeral?
. Do you want to be buried or cremated?
Can you make changes to your will and is it recommended to do if your circumstances change?
Yes. It is important to review your Will when a major life event occurs such as a marriage, a divorce, a separation, the birth of a child, the death of a relative or a change in your financial situation. These events may not only have an impact on the wishes you have for the division of your estate but will often have an effect on the validity of your current Will.
What would happen if I died without making a will?
(What problems would this cause for my dependents (if I had any))
See above. The rules of intestacy would apply if no Will is made. A spouse has a right to 2/3 thirds of the estate, the children get the balance. If no spouse, the children take all. If neither spouse nor children, the parents or surviving parent takes all; if no spouse children or parents, siblings take all. Beyond that it is left to next of kin
The legal rules of intestacy apply:
. When you have not made a Will
. When the Will has been denied probate because it has not been made properly or a challenge to it has been successful
. When the Will does not completely deal with all your possessions
In these cases, after debts and expenses have been deducted, the estate is distributed in the following way. If you are survived by:
. A spouse but no children (or grandchildren): your spouse gets the entire estate.
. A spouse and children: your spouse 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: your estate is divided equally among your children (or their children).
. Parents, but no spouse or children: your estate is divided equally between your parents or given entirely to one parent if only one survives.
. 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 relationships.
. No relatives: your estate goes to the state
Who can make a will for me?
What will it Cost?
Depends on complexity; starts at 150 € + VAT, but can vary upwards depending on the complexity e.g. tax considerations, or if e.g. assets include shares in a private company etc. Once the Will has been drawn up it is not effective until it has been signed in the presence of two witnesses.
What are Executors and Trustees?
Executors are the people appointed by the testator to carry out the terms of the Will. Typically, you appoint your spouse or close family member as executors. If you have no family, who could act, you may wish to appoint a company offering services as a professional executor. Trustees only come into play if a Trust is created in a Will. If say there is a young family and the parents die, the estate will need to be held in trust for the children until they are of full age
What is Probate?
A Grant of Probate is the document issued by the State once its satisfied that the Will lodged with the Probate Office is the Last Will and Testament of the testator. The Grant of Probate gives the Executor the right to administer and distribute the estate. If there is no Will, the spouse or nearest relative applies for a Grant of Administration.
Where do I keep my Will?
Your Will is a very important document and should be kept safely. Usually your solicitor will agree to store the Will for you. Alternatively, you can put it in your bank, if they have that facility.
Is there a check list that we should have when going to meet with our solicitor to make our will? (If you could list of a few things we can put them up on the screen).
Give the solicitor a print out of your name, address, age, marital status, and contact details. State who you wish to appoint as your executor/trustees, who you wish to appoint as guardians of minor children. List your assets. Make sure you ask every question to your solicitor that you need to, so you can understand how a Will is to work.
Source: Clifford Sullivan www.lawplus.ie
If you would like to get further information about making your will check out www.lawplus.ie or call them on LoCall: 1890 303132 Tel:01 276 5226
Or email: firstname.lastname@example.org
Or you can contact the law Society of Ireland at www.lawsociety.ie or call them on 01 672 4800 for a list of solicitors in your area.
Famous and Outrageous Wills
Portuguese aristocrat Luis Carlos de Noronha Cabral da Camara picked 70 random strangers from a Lisbon phone book 13 years before his death and made them his sole beneficiaries. The people were not notified until after his death, leading many of them to believe they were being conned [source: BBC].
Onni Nurmi, a Finnish businessman, left 780 shares of a rubber boot company to the residents of a nursing home in Finland. That company later became cell phone giant Nokia, and the residents of the nursing home became millionaires [source: AOL Finance].
Singer Dusty Springfield had a clause that a bequest be used to purchase a lifetime supply of her cat Nicholas' favorite meal -- imported baby food. It also called for Springfield's nightgown to line Nicholas' bed and for her music to be played for her special feline each evening [source: AOL Finance].
Irish playwright George Bernard Shaw famously included a contest in his will that called for his fortune to be given to the person that successfully created a new English alphabet. The stipulation was that the alphabet be entirely phonetic and not Latin-based. Shaw contended that Latin was not a good language for translating English, leaving us with too many unusual word spellings. The Shavian Alphabet would have no less than 40 characters, each one corresponding to a sound. An Englishman named Kingsley Read shared the prize money with four other contestants among 400 entries [source: Omniglot].
Marilyn Monroe and Princess Diana both died with wills at the age of 36, as did John F. Kennedy, Jr. at the age of 38. Anna Nicole Smith (aka Vickie Lynn Marshall) died two years ago at the age of 39 with a will that she wrote in 2001, and actor Heath Ledger died in March 2008 at the age of 28 with a will that he wrote in 2003. Singer Janis Joplin died at the age of 27 but managed to update her will only two days before her death. She actually provided for up to $2,500 to be set aside for a party in her honor. [source: Julie Garber, About.com Guide to Wills & Estate Planning]
MICHAEL JACKSON: report from www.rollingstone.com
The fight over control of Michael Jackson's assets is continuing in the courts. Though Jackson named two executors in his 2002 will lawyer John Branca and music executive John McClain - the singer's mother, Katherine, has continued to argue that the family should be more involved in business decisions. Katherine and Jackson's three children are set to receive the bulk of the King of Pop's estate, with unspecified charities getting the remaining 20 percent.
Displeased with the family's legal representation, the family has switched lawyers, bringing in Hollywood heavyweight Adam Streisand to replace Burt Levich and Londell McMillan. Streisand's first day on the Jackson case came just moments after a hearing that granted more authority to Branca and McClain to make deals for the Jackson estate, CNN reports. Streisand said the family "felt they needed a different perspective and fresh look at how this case was being approached."
Trust and estate litigation are Streisand's specialties, and he has notched victories in cases involving the estates of Ray Charles, Marlon Brando and Barry White, according to his profile on the Loeb & Loeb Website. Streisand also represented Britney Spears in February 2008 during the singer's conservatorship proceedings.
Though Jackson owed money to many creditors, his estate is expected to rake in about $100 million this year thanks in part to one of the first deals the executors nailed down, the upcoming This Is It concert film and soundtrack which will be released next
BUBBLES THE MONKEY - Michael Jackson's old pet monkey Bubbles has reportedly "not seen a penny" of the 2 million he was left in the singer's will.
It is claimed the monkey has been "frozen out" by the King of Pop's family following Jackson's sudden death in June.
Michael last saw the monkey 10 years ago but left him 2 million to "secure a long-term future".
However Bob Dunne, who organised Michael's adoption of Bubbles, has now told British newspaper the Daily Star: "We've heard nothing. I'm not sure we will do either. He's frozen out."
Michael adopted Bubbles in 1985 when he rescued him from a research centre but he was forced to give him up when he turned aggressive.
A source said: "Michael will turn in his grave if Bubbles' future is not financially secure."
Source: Splash News
JIMI HENDRIX: Died at the age of 27 without making a will (intestate), so his entire estate went to his Father Al. His estate did not consist of much but his musical legacy was used to build a managerial company called "Experience Hendrix" and became worth about $80 million.