All you need to know about Wills & Enduring Powers of Attorney
Why Should I make a Will?
The purpose of making a Will is basically, to protect and to provide for your loved ones. It will also prevent unnecessary distress and expense to your relations and loved ones which can oftenoccur if a will is not made.
We all own something, be it property, car, whatever and we all want to care for our relations and friends after our death. Making a will gives legal status as to what you intend to do with your assets or possessions. Normally, it is to pass them onto your relations and friends but you might also have some special requests and requirements.
Making a will can be straightforward, once you know what way you would like to leave your Estate. It is important that you consult a solicitor who can guide and advise you through the confidential process of making a will for the benefit of your loved ones.
Who should make a Will?
1. You are married and have children
2. You live with your partner but you are not married
3. A will is the only way to ensure that whatever you leave is distributed with the minimum delay
4. You are a homeowner
5. You set up your own business or firm
6. You are getting divorced or separated
7. You wish to leave some money/assets to your relatives
8. You wish to leave some money/assets to someone with disabilities.
9. You want to give some money/assets to a charity or a special cause.
10. You want to reduce the tax liability on your estate allowing you to leave more to your loved ones and favourite causes.
What happens if I do not leave a Will?
If you do not leave a Will, then you are deemed to have died Intestate (that is you have no Will). As such your Estate must then devolve and pass under the Rules of Intestacy in the Succession Act 1965 as per the diagram below, which shows who is entitled to inherit the estate. In order to administer and distribute your Estate your next-of-kin will normally have to consult a Solicitor to initiate the appropriate Administration or Probate procedures on your family’s behalf.
Intestate Succession – Order of Entitlement for deaths on or after the 1st January 1967.
An Executor is chosen by you (and named in the will) to Administer your Estate on your behalf. They are responsible for ensuring that the Will is acted upon correctly and all your assets are distributed according to your instructions. It can be a family member, a close friend or even your solicitor.
Spouses and Children
Spouses and children are normally the immediate beneficiaries of any will. By law, spouses and children have certain rights under the Succession Act, 1965 to a share in a Testator’s Estate if a Will has been made and your Solicitor will advise you of this when you are discussing your wishes. Even if no will has been made, then the spouse is entitled to all of the estate (if there are no children) or two thirds of the Estate if there are children. The remaining one third must then be divided equally between the children of the Deceased.
If children (under 18 years of age) are beneficiaries of a will, then Trustees may be appointed to handle the benefit until the child has reached adulthood. Provision can also be made for the care and guardianship of your children. You may wish to see them being reared by a close relative.
Changing your Will
You can change your will at any time. The simplest way to change your will is by making a new one or adding a codicil. A codicil should be signed by you and must be witnessed by two people. There are many reasons why you may decide to change your will such as a wedding, divorce, birth or death. You cannot write on a will to make changes. This will make it invalid. If a will is invalid the Deceased person will be deemed to have died Intestate and their Estate will then have to be distributed according to the Rules of Intestacy.
Making a Will by yourself
You can make a will by yourself but it’s always advisable to seek professional help as you may make mistakes if you are not familiar with the legal terms. Moreover, your intentions could be unclear and some errors could make your will invalid. Remember your will must be witnessed and any witness cannot be a beneficiary. If your will is held to be invalid, you may be deemed to have died intestate or partially intestate, thus, leaving your estate to your next of kin under the strict rules of entitlement as per the Rules of Intestacy.
Enduring Powers of Attorney
An Enduring Power of Attorney (EPA)- or Living Will as it is sometimes known as, is an instrument which sets down an individual’s wishes in a special Power of Attorney. It sets out the powers their Attorney should have over their affairs both personal and business in the event of the individual (or donor) becoming mentally incapable of doing so in the future.
The execution of an Enduring Power of Attorney (EPA) is a sensible and necessary step for an individual to take in order to safeguard their future requirements. In doing so, the individual keeps control over their affairs and wishes in the event of their becoming incapacitated at some future time whether as a result of an accident or illness.
Once executed an EPA remains dormant until such time as it is required to be activated (if ever) and it is then registered in the High Court. In the case of a temporary incapacitation such as a coma, it can be revoked once the individual (or donor) is deemed to be Copus Mentus or able to manage their affairs again.
What happens if I have not made an Enduring Power of Attorney?
If a person loses the capacity to manage their own affairs and they have not executed an Enduring Power of Attorney then it may be necessary to have such a person made a Ward of Court.
This is when the opportunity has passed for the execution of an Enduring Power of Attorney or where one never existed. In this situation the only option open to a family of an individual who becomes incapacitated is to apply to the High Court to make the individual a Ward of Court.
The Wardship procedure is commenced in the High Court by petition in the Office of the Registrar of Wards of Court. The President of the High Court will direct an inquiry into the capacity of the individual prior to determining whether the individual should be taken under the protection of the Court. A Committee is then set up to manage the Ward’s Affairs. This is quite an archaic and complicated procedure and can be avoided if the Individual has executed an Enduring Power of Attorney which will contain all of their wishes.
We can advise you and draft the appropriate Enduring Power of Attorney on your behalf.