Probate

Drafting a Will

Drafting a Will

It is not a legal requirement to make a Will, but it is crucial for you to understand that if you do not make a valid Will that the Succession Act 1965 will decide who benefits from your Estate. A valid Will can ensure that proper arrangements are made for your loved ones and that your property is distributed in the way which you intend after you die (this is subject to certain rights of spouses or civil partners and children), and in a tax efficient manner.
If you do not make a Will, your estate will be distributed pursuant to the rules on “intestacy”. The word “intestate” is used for a deceased person who did not make a Will. “Intestacy” is used when no Will was made.

There are certain specific requirements for the content of a Will and how it should be executed (i.e. signed). These rules, if not followed, can lead to the Will being declared invalid and your estate being governed by the rules on intestacy.

Additionally, if you have a foreign holiday home or other property, you may find that your Irish Will may not properly deal with overseas assets and conversely, a foreign Will might not be sufficient for Irish purposes.

There may also be issues in relation to Capital Acquisitions Tax with regard to the distribution of an estate. Your solicitor will be in a position to discuss with you how best to structure your Will in order that your beneficiaries’ tax burden is minimised (in conjunction with your accountant if you have a “complex” estate planning issues).

It is therefore important that you consult your solicitor (and your accountant if necessary) regarding your estate, in preparation for your Will.

Please bear in mind that your Will is automatically revoked in certain situations:

  • If you marry or enter into a civil partnership (unless your will was made in contemplation of that marriage or civil partnership).
  • If you make another will, the first will you made is revoked.
  • If you draw up a written document that is executed in accordance with the requirements for a will, your first will is revoked.
  • If you burn, tear or destroy your will, it will no longer be considered valid. Or, if you have someone else destroy it, your will is revoked, provided this was done in your presence, with your consent, and with the intention of revoking your will.

If any of the above situations occur, you must execute a new will.

Obtaining a Grant of Probate (or Grant of Administration)

If a person dies having left a Will, the executors appointed under that Will may apply for the issue of a Grant of Probate. Once the Grant of Probate issues, this will allow the Executor named in the Will to administer the Estate in accordance with the wishes of the Testator (the person who executed the Will).

If a person dies having made no Will or having made an invalid Will or a Will that was revoked, the Estate of the deceased person is then governed by the rules of intestacy and the next of kin can apply for a Grant of Administration of the estate which, once it is issued, enables the personal representatives to administer the estate in accordance with the rules governing intestate estates.

In both circumstances, the extraction of the Grant of Probate or Grant of Administration requires a suite of documents to be submitted to the High Court Probate Office, and the Revenue Commissioners and your solicitor can help advise you in relation to this.

Succession Act entitlements and Probate disputes

Irish society and culture is all too familiar with disputes about Wills and inheritance. A disgruntled person may believe that they did not receive their “fair share”, as they see it, from the deceased person. This can lead to them seeking to issue proceedings to either challenge the validity of the Will or the validity of a particular bequest (i.e. a gift) in the Will or to rely on one of a number of grounds of challenge that are open to them from the Succession Act 1965.

The children of a deceased have six months from the date of a Grant of Probate within which to challenge a Will on the grounds that it does not make proper provision for them out of the assets of the deceased. This is an important right granted to children by the Succession Act 1965, but given the short six-month time limit it is important that adequate legal advice is received by them at the earliest time so that they may make a considered decision about their options, if they feel that they have been unfairly left out of a will or have not received what they believe they were entitled to from an inheritance.

The spouse of a deceased person has many rights under the Succession Act 1965 in addition to whatever they are left in the Will. They have the right to elect to retain the family home they shared with the deceased. They also have the right to have provision made for them out of the estate of the deceased. It is important that a spouse obtains legal advice concerning their rights if they feel that they have been unfairly provided for in the will.

It is very important therefore that you engage a solicitor at the very earliest indication that there may be a dispute regarding the terms of a Will *.

*Note: In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.
or * A solicitor acting in contentious business cannot charge a fee based on a percentage of any award.