There is no good reason not to make a Will. Making a Will is one of the important things you can do to protect your business and your family’s future. For the purposes of this article I will showing you why it is important not to leave making a Will on the ‘to do’ list for too long.
If you do not make a Will the state dictates who is entitled to your assets. When a person dies without making a will the rules of intestacy apply governing who is entitled to receive a person’s property should they die. Very often the application of the rules of intestacy results in the deceased person’s property being distributed in a manner that they would never have wanted. This is because the rules set out a list of people who are entitled to receive shares in the deceased’s property as well as the amount of these shares and the order in which they are entitled to receive them.
The rules are as follows:-
• Where the deceased leaves a spouse/civil partner only, the entire estate passes to the surviving spouse/civil partner.
• Where the deceased leaves a spouse/civil partner and children, the spouse/civil partner inherits two thirds of the estate and the children inherit the remaining one third in equal shares.
• Where the deceased leaves no parent alive the estate is divided equally between the children.
• Where the deceased dies without a spouse/civil partner, children or parent, the estate is divided between his or her brothers and sisters in equal shares.
• Where the deceased dies without a spouse/civil partner, children, parent, brothers or sisters, all nephews and nieces take equally.
• Where there are no relatives the state takes the entire of the estate.
James died without making a Will. He leaves a wife and four children surviving him. As a result of not making a will, his wife is entitled to 8/12ths of his estate and his children are entitled to a 1/12th each.
Patrick died at 71 years of age and never made a Will. He never married and did not have children. He was also an only child so he did not have any nephews and nieces. Naturally, his parents have also passed away. He has cousins all over the world, many of whom he has not spoken to in years. Despite having no contact with Patrick, his cousins all are entitled to an equal share in his estate.
When you make a will you also get to choose who will administer your estate. A will allows you to name the person or persons who would be the most suitable and who will ensure your wishes are carried out. If you do not make a Will this is also decided by law and may fall to someone you would never choose.
By making a will you also get to choose who will inherit items such as cars, things of sentimental value etc. and ensure that they pass to the people who will appreciate these items most.
It is particularly important if you have young children and want to provide appropriate care for them after your death that you make a will. If you have young children, then the Will establishes a trust fund for their benefit and appoints guardians of your choice to look after them. If you have a child with special needs you can make arrangements in your Will for their care after your death.
Any asset that is not specifically mentioned in your Will falls into the residue of your will. The ‘residue’ is the term used to describe what property of yours is left over after the deduction of specific gifts, debts, legacies, tax and the expenses of the estate.
Careful will drafting can have a significant impact on the level of inheritance tax which will be paid. It provides an opportunity to assess the position and consider what steps can be taken to minimise the inheritance tax liability. The small cost of making a Will can represent excellent value when compared to the tax savings that can be made.
By making a will you can also choose to create a life interest for someone possibly a spouse or a child with special needs. A life interest entitles someone to a right to enjoy the use of a property exclusively or the income that the capital generates during their lifetime. Once that person passes away it will revert to the beneficiary you choose.
If you are single or separated and living with a partner, then without a Will your partner may find him or herself without any share in your estate unless you have specifically provided for him/her in your Will.
If you have a child who has taken over the family business and your wish is to leave it to that particular child you need to make sure your will is up to date and reflects same as otherwise if an unexpected tragedy occurs it can leave that child in a very vulnerable situation where that business has not passed to him or her.
We all have a natural reluctance to contemplate our own death but it is one thing in life that is guaranteed. My advice to every person in the country is if you have not yet made a Will, do so immediately. As the old saying goes, “Never put off until tomorrow what you can do today.”
Karen Walsh, is a solicitor practicing in Walsh & Partners, Solicitors, 17, South Mall, Cork (021-4270200. Walsh & Partners specialises in personal injury claims, conveyancing, probate and litigation.
Disclaimer: While every care is taken to ensure accuracy of information contained in this article, solicitor Karen Walsh does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.