Wills & Enduring
Powers of Attorney
Making a Will
“In this world nothing can be said to be certain, except death and taxes”
A Will is a written, legal document that sets out what you would like to happen to your assets/property (known as your ‘estate’) after you die. A Will must be properly signed and witnessed in order to be legally recognised.
A ‘testator’ is the person making their Will. If you die without making a Will, you die ‘intestate’.
Should I make a Will?
We advise all our clients to make their Will, and most definitely, you should make a Will if:-
- If you want to leave your estate in a way different to the intestacy rules under the Law of Succession*.
- If you own any property (house or land)
- If you have children under 18
- If you have dependents with a disability
- If your estate is valuable to the extent that any of the beneficiaries in your Will are likely to incur Inheritance Tax (Capital Acquisitions Tax / CAT).
- If you want to make things easier for those you leave behind, in sorting your affairs after your death.
- If you have married since you made your last Will.
5 Easy Steps to Making your Will
In theory, you could draft your own Will, but the safest way is to have it done by a Solicitor. Here are the steps in having your Will drafted:-
- Contact us, by ‘phone or email, and we will have an initial chat.
- We will then send you our introductory letter and information, explaining what we need from you, and what the cost of having your Will drafted is. We can also give you a document called a ‘Personal Assets Record’ which helps you list all your assets.
- We will then arrange a consultation to discuss your specific wishes, and deal with any questions you have, and also advise you on the legal and tax implications to consider when making a Will.
- We will then draft a Will based on your instructions and send it to you for review and approval.
- Following the making of any changes you may require, we then arrange to meet you for signing.
- At our meeting we ensure your Will is properly signed and witnessed so that it is a `valid` Will.
What happens if I die without a valid Will?
If you die without leaving a valid Will, then you are deemed to have died ‘intestate’, and your estate will be distributed in accordance with intestacy rules under ‘the Law of Succession’. Here are the legal rules about what automatic rights other people have to inherit from you in such circumstances;
If you are survived by;
- A spouse (or civil partner) but no children (or grandchildren): your spouse (or civil partner) gets your entire estate.
- A spouse (or civil partner) and children: your spouse (or civil partner) inherits two-thirds of your estate, and the remaining one-third is divided equally among your children. If one of your children has died before you, their share goes to their children (your grandchildren).
- Children, but no spouse or civil partner: your estate is divided equally among your children (or, their children).
- Parents, but no spouse, civil partner or children: your estate is divided equally between your surviving parent(s).
- Brothers and sisters only: your estate is shared equally among them (with the children of any deceased sibling taking their deceased parent’s 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 relations.
- No relatives: your estate goes to the State.
Common Problems with Wills
When you make your Will, you should consider some common problems that result in a bequest made in a Will being invalid.
- There is confusion about the identity of a beneficiary. For example, you leave a gift to your ‘cousin Mary’, but you have a number of cousins named ‘Mary’.
- The item you want to leave to someone may be lost, or no longer exist, at the time of your death, for example if you named a bank account in your Will and you since closed it and transferred the monies to another account.
- Where the original Will is lost, and only a copy exists, or, where the Will is partly destroyed/illegible, there will be additional legal requirements to prove the validity of the Will.
- If you leave something to a person who actually witnesses your signing of our Will, that bequest will be invalid.
- If there is no ‘residuary clause’ included in your Will, any asset not specially mentioned will pass according to the intestacy rules under the Law of Succession.
- If there is a medical condition mentioned on your Death Certificate which raises a question about whether you had sufficient mental capacity to make your Will, when you died, there may be difficulties in proving the Will is valid.
- What does ‘being of sound mind’ mean?
In order to make a valid Will, you must have the mental capacity to understand what you are doing in making your Will, and we may advise you to have your doctor certify that you are capable of making a Will.
- Undue Influence
Acting under undue influence means acting under pressure from someone else. Your Will can be challenged after your death, if someone claims that you were influenced by someone into making a Will that didn’t reflect what you actually wanted.
- Provisions for your spouse, partner and dependents
Your spouse or civil partner has an automatic entitlement to inherit part of your estate, known as their ‘legal right share’. This means the law guarantees they can inherit a certain portion of your estate, even if you exclude them from your Will. Your children may also be entitled to inherit more than what is provided in your Will, if they can prove that you have not made proper provision for them either during your lifetime or otherwise in the Will. We can advise you on this in more detail at our consultation.
“A Stitch in Time, Saves Nine”
We can help you ensure that all legal and taxation issues relevant to your particular situation are covered, so your wishes can be followed after your death, whilst protecting and providing for your loved ones.
Contact us here today to discuss your situation, and how we can help you.
Fair Deal Scheme
Should you or a loved one need to consider long term residential care, we can also advise you and assist you in making an application under the Fair Deal Scheme, the Nursing Home Loan Scheme and should it become necessary act on your behalf in the court appointment of a Care Representative for a family member that is not in a position to act on their own accord.
Enduring Power of Attorney
We understand and appreciate that a time may come when you may no longer be able to manage your property and affairs, and the importance of carefully planning should such circumstances unfold. We provide expert legal advice and create for you a tailored Enduring Power of Attorney (EPA) which allows a trusted person, nominated by you, to handle your affairs, should you become mentally incapacitated in the future.
What are the Benefits in Having an EPA? An EPA allows you to appoint someone of your choice, to control your affairs, if you become mentally incapacitated (e.g. Alzeheimer’s, Dementia, Brain Injury). It also avoids you being made a Ward of Court in the future, which would permit the Courts to take control of your property and make decisions on your behalf.
You must have the necessary mental capacity to create an EPA. If you become mentally incapacitated and have not yet signed your EPA, the person who wants to look after your interests will have to apply to the High Court to have you made a Ward of Court.
Some Common Questions Answered
- What is an EPA? An Enduring Power of Attorney (EPA) is a legal document where you (‘the donor’) states that the person appointed by you (‘the attorney’), will, in the future (if you become unable or mentally incapable of looking after your affairs) have power to act on your behalf and will have responsibility to handle your affairs during your lifetime.
- Who Can (and Can’t) be an Attorney? You can ask anyone you like, but they should be someone you trust. They must be over 18, and have never been bankrupt, or convicted of fraud or dishonesty, or disqualified from acting as company directors, or anyone who owns a nursing home.
- What Kind of Powers can my Attorney Have? You can authorise your Attorney to have ‘general authority’ to manage your property and affairs, or, a more ‘specific authority’, to only carry out specific acts on your behalf. You can also authorise your Attorney to make certain personal care decisions on your behalf – and your Attorney can only make these decision in your best interests.
- Where and with whom you should live
- Who you should and should not see
- What treatment and rehabilitation you should receive
- Decisions about your dress/attire, diet, activities, etc.
- Inspection of your personal papers
- Other housing, social services and benefits you need.
- What happens if my first attorney of choice cannot act, or doesn’t want to? You can also appoint a substitute attorney to act in the event that the original attorney is unable or unwilling to act (known as a ‘substitute attorney’).
- How does an EPA come to an end? The EPA comes to an end when you die, or if revoked by you during your lifetime. Once registered (activated), an EPA cannot be revoked unless approved by the Court.
Steps Required to Create an EPA
There are very strict steps to be followed for your EPA to be legally valid, and you will need your Solicitor and your Doctor’s involvement. Your Solicitor must ensure you are making your EPA of your own free will, and that you understand the legal nature of the document and powers being created. Your Doctor must certify that you had the required mental capacity, and understanding, required to create this document and grant these powers.
- Contact your Solicitor straight away to take your instructions and start the legal process. Your Solicitor will start drafting the legal paperwork, and will write to the various people involved, as follows:-
- Your Doctor must sign a statement confirming you have the requisite mental capacity to create the EPA.
- You must give notice of the execution of the EPA to at least two persons, other than your appointed attorney, one of the notice parties must be your spouse or civil partner if living with you. If this does not apply, one of your notice parties must be your child. If neither is applicable, one of the notice parties must be any relative (that is parent, sibling, grandchild, widow/widower/surviving civil partner of child, nephew or niece).
- Once the EPA is created, and only if you become mentally incapable of managing your affairs, your appointed attorney can apply to have the EPA registered in the High Court so that he/she can then `step into your shoes` and manage your property and affairs and make such personal care decisions as permitted under the terms of the EPA.
- Before applying for registration of the EPA, your Attorney must give written notice of intention to do so to you and to the persons you have notified of its creation. You and these persons (if they are not then available, certain of your relatives) will be able to object if you or they disagree with registration.
Contact us here today to discuss your situation, and how we can help you.