WILLS & ESTATE PLANNING – 10 TOP TIPS WHEN MAKING A WILL
1. Why make a Will?
If you die and you have not made a Will you are said to have died “intestate” and your assets are distributed under the rules of intestacy. Thus, your estate may not be distributed in the way that you wanted it to be. By making a valid Will you are ensuring that you are distributing your assets in accordance with your wishes upon your death and you are said to have died “testate”.
Making a valid Will allows you to protect your family and loved ones, provide for guardians/trustees for your children and it ensures that your wishes will be protected by law.
2. Requirements for a valid Will
There are a number of requirements for making a valid Will. Firstly, your Will must be in writing. You must be aged 18 or over and be of sound mind. A valid Will must be signed by you and your signature must be witnessed by two witnesses. These witnesses cannot be persons who stand to gain any benefit from the Will i.e. a witness to your Will should not also be a beneficiary.
3. What should my Will contain?
A Will should be drafted with certainty and clarity. You should cover all of your assets in your Will. Care must be taken with joint property as some jointly held property may pass automatically to the surviving joint owner(s) upon your death.
A Residue Clause is an extremely important clause for all Wills as this clause will deal with all of your assets that have not already been dealt with specifically in the Will and/or assets that you obtain after the making of your Will.
4. Appointing Executors
When making a Will you will have to consider who you will choose as your Executors. Your Executors will have the responsibility of helping to administer your Estate after you die. It is advisable to appoint two Executors. Your Executors should be people that you trust to assist your solicitor on your death in administering your estate and ensuring your wishes are carried out in line with the Will that you have made.
5. Appointing Guardians
If your spouse has died before you and you have children under the age of 18 you should appoint a Guardian for your children. In the absence of appointing a Guardian in your Will the Court will appoint one on your behalf.
6. Rights of a Spouse/Civil Partner
A consideration when making a Will is that of your spouse’s/civil partner’s “Legal Right Share”. Where you have died having left a valid Will, your surviving spouse is entitled to take one half of your Estate (if you do not have children) or one third of your Estate (if you do have children) regardless of whether you have provided for your spouse in your Will or not. Your spouse is entitled to their Legal Right Share as long as they have not renounced or given up their rights to your estate before the death. The surviving spouse can choose to elect to take their Legal Right Share instead of the bequest (if any) due to them under your Will.
7. Rights of Children in a Will
Children do not have an absolute right to an inheritance from a parent’s Will. However, where a child feels that they have not been adequately provided for in their parents Will they may bring a challenge against the Will. The Court will decide whether the parent has failed in his/her duty to the children to make proper provision for that child. This is an important consideration when making a Will and should be discussed in detail with your Solicitor.
8. Keeping your Will up to date
It is advisable that you review your Will should you have any change in circumstances such as a divorce, marriage, children etc. Also, if your assets increase or decrease it is prudent to review your will to ensure that it is accurate, up to date and all of your assets are dealt with.
9. Taking care of your Will
Once you have made a Will your solicitor should store it securely, often in a safe or vault. You should ensure that whomever you have appointed as executor(s), is aware of the Wills’ whereabouts so that they can locate it on your death. Your Will is an extremely important legal document and the original Will is required to administer your estate on your death.
10. Use a Solicitor
There are many legal requirements and considerations when making a Will in order to ensure that it is valid. The importance of using a solicitor when drafting a Will cannot be understated and ensures that your wishes will be carried out upon your death in accordance with the law.
If you require advice on Wills contact David J. Sweeney, Shane Power or Thomas Clifford.