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Wills ^& Probate

FAQ

Welcome to our FAQ page where you will find some frequently asked questions about making a Will.

We hope you find the questions and answers provided of assistance to you. If you require further information or you have a particular query, please do not hesitate to contact us.

Why Should I Make a Will?

The best way to make sure your assets are distributed in accordance with your wishes is to make a Will. If you die without a Will, your assets will then be distributed according to the law, rather than by your wishes and the law will decide who will responsible for administering your estate .

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How do I MAKE A Will?

At Browne & Murphy Solicitors our experienced team can help you in making the right decisions when it comes to making your Will.  We have particular expertise in drafting wills and can advise on the best options relative to your individual requirements and circumstances ensuring you have peace of mind that are in safe hands. Please contact us for further information and we will be happy to meet with you and guide you through the process of making you Will.

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When Should I Make a Will?

Actually, right now! Don’t wait “until the time is right to make your Will”.  A Will can always be changed as your circumstances change.  It is important to note that if you do not leave a Will your assets shall be distributed according to the Rules of Intestacy rather than according to your wishes.

You should also make a Will and/or review your Will at certain milestones in your life

  1. After marriage/remarriage or civil partnership. It is important to note that marriage and civil partnership  revokes a Will. Therefore, if you do not make a new Will, your estate will be distributed according to the Rules of Intestacy.
  2. After a separation/divorce. Separtion/divorce does not revoke a Will. When you separate from your spouse it does not mean that your spouse automatically loses their right to the his/her legal right to a share of your estate. This depends on the terms of a separation/judicial separation agreement, or divorce. If you are separated and are completing your Will you should furnish your solicitor with a copy of your signed separation agreement/divorce. .
  3. Long-term relationship but have not married , cohabiting or entering into a Civil Partnership
  4. After a spouses death: if you left a significant proportion of your estate to your spouse in your Will, you will need to update your Will.
  5. The birth of a child. You will need to change your Will to provide for the child and also to  appoint trustees and guardians for your child in the event that something should happen to you and your spouse. Also a change in your child’s circumstances such as if your child gets separated or divorced. This is particularly important where an individual intends to leave valuable assets to a child in their Will.
  6. After the death of one of your heirs , if your heir dies before you, you may need to change to change your Will to reflect this change.
  7. Your assets may have altered significantly, either the value of the asset or you may no longer own an asset or you may have acquired additional asset which you may want to deal with in your Will
  8. Changes in tax law

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What happens if I die without making a Will?

If you die without a Will you are said to have died ‘intestate’. If you die intestate, this means your estate is distributed in accordance with the law.  The rules of intestacy are not flexible and don’t take into account what your wishes may have been. After your debts and funeral expenses are deducted, the rules of intestacy sets out how your estate is distributed.

For further information click on the link on the right of this page.

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If I make a Will can I change it and how?

Yes. Provided of course you have the mental capacity to change your Will. It is quite common for people to change their Will regularly. It is important that you review your Will on a regular basis. You cannot change things in your Will by simply crossing out something in your Will and writing additional parts into your Will. There is a particular process involved and legal requirements to be met.

You can change your Will in two ways

  1. By making a new Will, by creating a new Will this will superde your current Will.
  2. By making a Codicil, which is an addition/extension to your original Will. A Codicil can be useful when you want to add, change or delete a part of your Will. But in the case where you wish to make a number of changes to your Will it would be  advisable to complete a new Will.

Please contact us if you are considering altering your will and/or wish to make a Codicil as the Codicil needs to make reference to the particular part of your Will that you are amending and a Codicil should also be signed and witnessed in the same way as a Will.

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How do I cancel my Will?

This can be done in a number of ways:

  1. By a subsequent Will or Codicil, simply by making a valid new Will it will revoke your previous Will.
  2. By a subsequent marriage or civil partnership. Marriage and civil partnerships automatically revoke a Will.
  3. By declaring, in writing, a clear intention to revoke a Will.
  4. By burning, tearing or destroying a previous Will with the clear intention of revoking the Will.

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What is a Bereavement Grant?

The Bereavement Grant is a once-off payment of €850 to help with funeral costs of a deceased. Eligibility for this grant is based on the PRSI contributions of the deceased,  it is not related to your ability to pay for the funeral. In order to obtain the grant you will need:

  • Complete an application form BG1,  which you can  download on line from the welfare website www.welfare.ie or obtain the from your local social welfare office.
  • You will need to forward the deceased’s PPS number
  • You will need to obtain the Death Certificate and funeral bill.

The grant is paid to the person responsible for paying the funeral bill.

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What is a Mutual Will?

A mutual Will is defined as joint or separate Wills made as a result of an agreement between the parties to create irrevocable interests in favour of certain beneficiaries.  While the contents of a mutual Will can look like a regular Will, it has one fundamental difference which is that it can be revoked by unilateral breach, provided such revocation occurs before the death of either party, and is made on notice to the other party to the mutual Will.  It is the death of the first to die, without having revoked the agreement, which renders the Will of the survivor irrevocable in equity.

What happens to joint property under a will?

Joint property held as ‘joint tenants’ (i.e. held in joint tenancy) usually passes by survivorship. In other words the surviving party takes ownership of the property. This is very different to a person holding an interest in property as ‘tenants in common’ with another person, as the share in the property will pass under a persons Will. The best way to illustrate this is through the use of an example:

Mary and John hold an apartment in Dublin as joint tenants. Mary has made a Will leaving all her property to her sister Sarah. On Marys death, the property then transfers to John by survivorship as they hold the property as joint tenants.

Using the same example as above  but that Mary and John hold the property as tenants in common. On Marys death her half interest in the apartment will go to her sister Sarah as set out in her Will.

You can see that there is a substantial difference in the results depending how the property is held. It is important that before you make a Will that you make sure that you know how your property is held. There is significant differences and it will have significant impact on your Will and the distribution of your estate.

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Can I include foreign assets in my Irish will?

You should notify your solicitor of any foreign assets that you have. It may be possible to dispose of foreign property under your Irish Will but only if your Irish Will is recognised in that country. Foreign countries will have different laws and tax structures  It is preferable to make a Will in the relevant country where you own property. You should furnish to your solicitor a copy of your foreign Will (and translation were necessary). It important to ensure that any foreign Will does not inadvertently revoke an Irish Will.

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WHERE IS MY WILL STORED?

Your solicitor will keep your Will in a fire proof safe as part of their service. There may be a charge for storing your Will and you should check this.

Note: Browne & Murphy Solicitors do not charge a fee for storing your Will.

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What is a caveat?

A Caveat is essentially a blocking devise which stops a grant in an estate of a deceased issuing until it has been removed or set aside. A person intending to oppose the issuing of a grant can lodge a Caveat. It is lodged in the district probate registry. A Caveat remains in place for 6 months, after this time it can be renewed. A Caveat must contain the date it was lodged, the name and addressees of the parties on whoses behalf the Caveat is lodged, and the office of the solicitors office who lodged the application.

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What is a living will?

The Advance Health Care Decisions Bill was published in January 2012 and on the 8th June 2012  a  Bill to allow for “Living Wills” was debated in the Dail and has been passed to the second stage.

A Living Will also referred to as a Health Care Directive allows a person over the age of 18 years to set out the level of medical treatment they wish to receive or not receive in the event that they become terminally ill or incapacitated and not in a position to communicate their wishes. A Living Will would not become effective if a person is in a position to communicate and make their own decisions.

As people will not always be in a position to communicate their final wishes regarding their care, a Living Will allows a person to communicate their wishes while they are in a position to do so.

When a family member is terminally ill decisions in relation to the level of care can cause heartache and stress for the family, particularly when agreement cannot be reached , and people want to ensure that everything possibly is done. Due to advances in medicine and the ability to prolong life significantly this is becoming more of an issue. A Living Will gives the final say to a person in relation to their own care.

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What is a residuary clause in a Will?

It is a gift of all or a share of the remainder of your estate after all debts have been paid and all gifts have been distributed under the Will. It is a very important clause in a Will as without a residuary clause any property which is not specifically referred to in the Will would pass according to the Rules of Intestacy.

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I want to contest A Will, What SHOULD I do?

While a person is free to deal with their assets as they wish in their Will, the law does impose certain restrictions in particular in relation a persons children and spouse.  Challenging a Will can be a complex matter and you will need expert legal advice. We have particular expertises in this area and can advise you on your legal rights and the process involved.

For further information click on the link on the right or contact us now to arrange a convenient appointment.

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Can my executor be a beneficiary in my Will?

Yes, your executor can be a beneficiary in your Will.

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Can a beneficiary witness my Will?

No, not if you would like them to receive something under the Will. If a beneficiary in your Will or their spouse witnesses your Will they cannot receive a benefit in your Will .

The law is very clear. Section 82 of the Succession Act 1965 states that in circumstances where a person who witnesses the execution of a Will also stands to benefit under the Will then the devise, bequest, estate, interest, gift or appointment shall be “utterly null and void”. We can for your Will to be witnessed correctly and ensure that all the requirements of making a valid Will are complied with .

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Does marriage revoke a previous Will?

Principally, yes. If you get married or enter into a civil partnership any previous Will that you made is revoked. However, there is an exception to this and that is where a Will was made in contemplation of marriage or civil partnership and that fact is expressed in the Will.

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Does divorce revoke a previous Will?

In Ireland,  divorce does not revoke your previously made Will.  Divorce will have no effect on your Will or any specific provisions relating to your former spouse in your Will.  The best advice is to make an entirely new Will without delay.

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HAVE A QUESTION OR NEED MORE INFORMATION?

tel: 061 599 033 email: info@bmsolicitors.ie visit us: 64 O'Connell Street, Limerick Opening Hours: Monday - Friday 9.00am to 5.30pm. Saturdays by Appointment

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