A will is a legal document in which a person called the Testator (male) or Testatrix (female) sets out his or her wishes in relation to the manner in which he/she wishes for their assets to be distributed upon death. A will can dispose of all property which the testator/testatrix is beneficially entitled to at the time of death.
There is a common misconception that any property left to a person in a will cannot be dealt with or disposed of during the testator’s lifetime. However, a will does not take effect until the death of a testator/testatrix. Therefore, he/she is free to deal with any property left in the will until such time as death occurs i.e. he/she can give away or sell any particular property even if it has been left to a particular beneficiary under the will.
The Advantages of Making a Will
The main advantage of making a will is that it allows a person to dispose of his/her property in the way that he/she wishes and it is not left to the State to decide who gets what on that persons behalf, as would happen (under the law of intestacy) if a will was not made.
A will allows a testator/testatrix to provide for the special needs of a family member e.g. a child with special needs and ensures that the minimum tax is paid on any benefit left to that child.
The creation of a will allows the testator/testatrix to decide who it is that they want to deal with their affairs once death occurs. This is done by appointing an executor (male) or an executrix (female) to administer the estate. It is recommended that at least two executors be appointed. If a person dies without making a will, they will lose control over the distribution of assets as the Succession Act 1965, will then determine who will inherit and who will administer the estate.
A will prevents family members, friends and even business partners from arguing over your estate as everything is laid out clearly in one document.
Making a will is not something that should only be done by elderly people and it should not be done at the last minute. It is something that needs to be thought about carefully and planned for and should be considered by all age groups, especially couples with young children. Even if you think that you do not have significant assets to deal with, a will is still necessary. A will is important for those that not only have assets, but also those that have responsibilities.
Prior to Making a Will
Before making a will, it is advisable to make a list of your assets, their value and where they are located. Time should be taken to carefully complete a Personal Assets Record to ensure that after death, the executor/executrix will be able to locate all assets and important documentation such as property deeds, life insurance policies, bank accounts etc. Your advising Solicitor will need to be aware of these details when making your will, so as to advise you correctly on any legal or tax implications that may apply.
Who Can Make a Will?
Any person who has attained the age of 18 years, or is or has been married, and
That person must be of sound disposing mind.
Requirements for a Valid Will
The will should be in writing.
Signed at the end by the testator or by some person in his presence on his direction.
The testator must sign in the presence of two or more witnesses who are both present at the same time.
Each witness must attest, by their signatures, the signature of the Testator in the presence of the Testator.
The witnesses must sign the will but do not need to see what is written in it.
The witnesses cannot gain or benefit from the will.
Reviewing a Will
It is advisable that a will be revised by the testator/testatrix every 3-5 years, as circumstances may change which may have implications for the will. The laws in relation to wills, probate and estates may also change which can have an effect on the will. Therefore, it is prudent practice to review a will during a testator's/testatrix's lifetime. A will can also be revoked at any time.
The Wills and Probate Department at Cantillons Solicitors are experienced in all aspects of wills and probate.
If you would like further advice on how best to draft your Will or Administer an Estate please contact us here at Cantillons Solicitors, 39 South Mall, Cork, Tel 021-4275673 or [email protected]