Making a Will - what you should know

Report
Making a Will what you should know
Sarah Lennon
Inclusion Ireland
Presentation Overview
• Introductions
• Why should I make a will?
• Components of a valid will
• Different considerations
• Assisted Decision Making Bill
• Questions
Introductions
The Vision of Inclusion Ireland is that of
people with an intellectual disability living
and participating in the community with
equal rights as citizens, to live the life of
their choice to their fullest potential.
Why Make a will

If you don't then you have died ‘intestate’ and
strict rules apply

You have no say in how your estate is divided

Verbal assurances may not have effect

Any wills you make doesn’t have to be final– can
be changed or altered
Intestacy
Do I need a solicitor?

Not technically needed

It is usual to hire a solicitor, especially if
creating trusts

Legal accuracy is important especially with
trusts

Invalid wills means that the rules of intestacy
kick back in
A Valid Will
• Must be in Writing and signed
• Must be witnessed (signature)
• You must be over 18 or have been married
• You must be of sound mind & free will
• 2 executors
A Valid Will
• Must include your name and address,
• a statement revoking earlier wills included
• Statement naming executors
• A residuary clause (e.g. "The remainder of
my estate I leave to my son, Jack".
Witnesses
• 2 required
• Must sign after you have signed
• May not receive a gift
• Their spouse may not receive a gift
Executor

A person named in the will who has the
job of carrying out the terms of the will

Can benefit from will (unless they or their
spouses are witnesses)

Over 18

Sound Mind
Do I have to leave my property to my
children equally?

No

Any child who feels they were not treated
fairly can bring a court application

Must show proper provision wasn't made

Provision can include money given during
life time
Challenging a will
• Generally 3 areas
– Lack of Capacity (Sound Mind)
– Undue Influence (Pressure)
– Failure to provide for certain family members
• Application must be made to court
Sound Mind

Have legal capacity

Understand that you are making a will

Only mental state of person at time they
made will – not at a later stage

Ward of Court cannot make a will
Undue Influence
• Where the relationship between two
people allows advantage to be taken of a
person
• A decision is taken on foot of that pressure
• Types of relationship – parent, spouse,
solicitor, doctor etc.
Providing for Family Members
• ‘Moral Duty’ – cannot disinherit children or spouse
/ civil partner
• 6 months limit on challenges
• Consider the will and any previous gifts
• Children inside and outside marriage
• Co-habitees have no legal right but a ‘qualified
cohabiter’ may apply to the court
Capital Acquisition Tax
• Gifts are tax free up to a certain amount depending on the
relationship
• After 6 December 2012 - Threshold amount Nil & Balance 33%
• Spouse & Civil Partner are exempt
• Group A – Children - €225,000
• Group B – Parents (can be group A), Grandparents, Grandchildren,
Siblings, Nieces & Nephews - €30,150
• Group C – All other relatives €15,075
Disability Allowance
• Means test looks at all your capital, for
example, the value of savings,
investments, shares, any property you
may have (other than your own home).
• The first €50,000 of any capital you have
is not taken into account.
Disability Allowance
Discretionary Trust
• ‘discretionary’
• May be useful for a person who is
receiving a social welfare payment
• Indirect provision
• Other uses and assurances
Discretionary Trust

Has Tax benefits

Helps preserve state benefits

Person only has a life-interest in trust fund

Important that payments are periodic –
regular payments seen as maintenance /
income
Trust Funds

Can be done while living or through a will

Letter of wishes can accompany the trust
document

Not binding

Clear guidelines or priorities for trustees
Trustees
• ‘Trust’
• Significant responsibility
• Trustees have secondary liability for tax
• Consider who and how many
• Discuss role
Trust Tax
• Discretionary trust tax (6% initial, 1% annual)
• Trustees must notify the revenue
commissioners & self-assess
• Exemptions
– Children (until they turn 21)
– Incapacitated persons
– Public/charitable
Trustees

Who should be a trustee?

“Trust”

Age Profile

Consider 3

Professional or Family

Discuss
Guardianship

Where a child – under 18 - testamentary
guardian

Where an adult – over 18 – guardiansip
not possible

Ward of Court is only adult Guardianship
Ward of Court

1871 – outdated

Restrictive, travel etc.

Anyone can apply, solicitors, family
members, doctors, HSE

Committee is appointed for personal or
financial decisions
Assisted Decision Making Bill
• No longer Ward of Court
• Office of the Public Guardian
• Various Structures
– Assisted Decision Making
– Co-Decision Makers
– Personal Representative
How will Decisions be Made?
1. by the person autonomously
2. By the person with assistance
Outside of the Court
System
3. Informally by another person
4. By the person with a co-
decision maker
5. By another person
(representative or attorney)
Through the Court
System
Wards of Court
• Everyone who was a ward before the Act will be reviewed
within 3 years but can apply to court for review as soon as the
Act is passed
• Everyone who was a ward will be discharged eventually, and
a different order will be made (e.g. co decision-making or
representative) but the court will decide when this will happen
and will base this on the person’s capacity
Summary
• Dying without a will – Intestacy
• With a will – there are certain restrictions
• Trust Funds & Trustees
• Assisted Decision Making Bill
Thank You
• Q&A

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