After almost 50 years of practice, we have drafted thousands of Wills for people. Nevertheless, we still find that Wills are strongly avoided by some who are reluctant to give consideration to the inevitable.
Planning for what happens to your personal and real property after death is important for those you may leave behind or for charitable causes that you support.
It is strongly advised that your Will is drafted by an experienced solicitor to ensure it is valid and for advice on the most tax efficient way to deal with your estate.
It is important to execute once you reached the age of 18, provided you have the mental capacity to do so, but a Will should typically be drafted when you are young, particularly for people with young families, who may wish to appoint testamentary guardians for their children and create a trust for their financial needs. You can always execute a new Will as the circumstances in your life change.
If you do not make a Will, legislation, namely the Succession Act, determines who is to inherit your estate and who is to be responsible for distributing your assets. This can often turn out contrary to your wishes.
A Will is a testamentary instrument which describes how a person wishes for their assets to be distributed after their death.
Section 76 Succession Act 1965; “A person may by his will, executed in accordance with this Act, dispose of all property which he is beneficially entitled to at the time of his death and which on his death devolves of his personal representative.”
'Property' means both real property (such as a house) and personal property (such as money) but does not include joint property which for the most part passes by survivorship to the other owner(s).
A Personal Representative, described in a Will as an Executor, is the person or persons you wish to appoint to administer your estate. In other words the person who will extract the grant of probate, gather the assets and distribute them in accordance with the Will. The Executor may do this themselves or through a solicitor. The Executor can also be a beneficiary of the Will and should be someone you trust will carry out what you have asked of them. A solicitor or firm of solicitors can also be appointed as Executor. This is often done for instance, if a person doesn't wish to put the responsibility on a family member or close friend, or to ensure there is no fall out between family, or because it can simply be more efficient in terms of signing the many documents involved. It is a completely personal decision.
A Testamentary Guardian is the person you wish to act as guardian of your child(ren) should their only guardian or joint guardians pass before your child(ren) reach the age of majority (18). A guardian has the right to make all major decisions affecting a child’s upbringing, including, educational, health and medical decisions. A Guardian is responsible for the welfare of a child to which they are appointed. A Testamentary Guardian can also apply for custody of your child(ren) after you passing.
A trust created by a Will can act as an important instrument, particularly for families with young children. A trust allows you to decide at what age you would like for your children to inherit or in what stages. Some parents might prefer for a child to reach a more mature level than the typical 18 year old. A trust requires the appointment of someone as Trustee who will apportion funds as they think appropriate, for instance educational and or training fees.
A trust is typically the best way to provide for a vulnerable person or someone with a disability that prevents them from managing their own affairs.