TRUE OR FALSE – 10 MAKING A WILL MYTHS EXPLAINED

Many people are put off by the thought of making a will for a number of reasons; it’s a sensitive issue which forces people to make decisions and think about a scenario that they would prefer not to think about, they don’t know where to start and who leave what to, they are intimidated by making appointments with a solicitor or believe it can be expensive or they assume that their spouse/children or other close loved ones will automatically inherit everything from them.

Making a will is a very straightforward process and can be completed in one appointment with a solicitor at a more reasonable price than what you might expect. Yes, some important decisions need to be made, but the alternative (passing away without a will) can create a stressful situation for loved ones you leave behind. This is why we, at Probate.ie, have put together this myth-busting guide to making a will in Ireland, so that you can approach the subject with confidence and ease.

See also:

7 Irish Probate Myths Explained

1o Enduring Power of Attorney Myths Explained

1. ‘You should have a will in every country in which you own property’

TRUE…

…many people who own properties at home and abroad believe that one will (usually a will in their home country) is sufficient to ensure that all their wishes are met and their property abroad can be passed on smoothly. This is not the case.

It is best practice for a person to also have a will in the country in which their foreign property is located, as well as a will in their home country, as each country will have their own legal system and taxation rules. It is advisable to contact a solicitor in the country in which the property is located to speak with them about what needs to be in place for the smooth administration of that part of a person’s estate.

2. ‘You need to appoint more than one executor in your will’

FALSE…

…an executor is a person appointed by the deceased to deal with their estate when they have passed away. Technically, there is no limit to the number of executors you appoint in your will, but from a practical point of view having too many executors can cause delays in administrating an estate. In addition, there are procedural difficulties in extracting a Grant of Probate by more than three executors.

In reality, you do not need more than one executor to administer your estate however, most people will appoint two executors to offset any risk of one executor predeceasing you or being unable to act when the time comes.

3. ‘Your will has no effect until your death’

TRUE…

…this is a simple straightforward answer of, yes, your will takes effect only on your death.

4. ‘You can change your will as often as you like’ 

TRUE…

…once you make a will, it is not set in stone until you pass away. Anytime before death a person can change their will. In cases where a person has lost the mental capacity to make their own decisions, they may not be able to change their will. A person can change their will buy either simply making a new one and destroying the old one or by adding an extension onto their will, this extension is called a ‘codicil’. A codicil is useful when a person wants to add, amend or remove a part of their original will without starting all over again with a new one. It is advisable to contact a solicitor if you choose to change your will, as if not changed correctly it may not be valid at the time of death and your wishes may not be carried out as planned.

5. ‘You need to change your will if you buy a new car or house’

FALSE…

…a common misconception is that when a person buys a new car or changes property and buys a new house that they have to update their will. This is not the case as your will can be drafted in such a way to cover whatever house or car you own at time of death. However, you need to check the manner in which your Will is drafted.

In addition, you should review your will from time to time in line with changes in financial affairs or family circumstances.

6. ‘Children cannot take inheritance until they reach 18 years of age’

TRUE…

…when a child (under the age of 18) inherits from a will, that child cannot take their inheritance until they come of age. This is why people would appoint trustees in their wills. A trustee is tasked with looking after inheritance for a child until they become of age (at least 18).

Another alternative is that their parents are authorised to accept the inheritance for them and use it for the child’s health needs or education, whatever the case may be.

The most suitable option will depend on the amount of inheritance the child is to receive.

7. ‘If you have no will the State or Government will get everything’

FALSE…

…the state/government is not entitled to inherit everything from you. If a personal dies without a will, then they are said to die ‘intestate’. There are certain rules for who inherits when a person dies intestate. These rules (rules of intestacy) are set out in the Successions Act 1965.

If you have no will everything you leave will be distributed under the rules of intestacy. The problem here is that this may go against your wishes and a loved one that you would want to inherit from you may not receive anything after your death. This is why it is so important to take the time to make a will and ensure your loved ones are looked after once you have passed.

8. ‘Your will is rendered useless if you marry after it has been made’

TRUE…

…this is one aspect of having a will that people usually don’t know about. When you get married or enter into a civil partnership any will you made previous to that marriage or civil partnership will be revoked. Essentially you have no will at that time, it is important to address this, as if you don’t and pass away without a will, your estate is left to be distributed under the rules of intestacy.

The only exception to this is if you make your will in contemplation of your marriage or civil partnership. This simply means that engaged couples can make a will which will stay valid once they are married. The ‘in contemplation of marriage’ clause, ensures that regardless of their status their wishes towards each other and the remainder of the will stays valid once married.

9. ‘You can appoint a guardian for your minor child in your will’

TRUE…

…this is a crucial aspect to take into consideration for any parent of a child under the age of 18 years of age as they need to appoint someone to look after the welfare of the children if they pass away.

Remember that people change as often as circumstances do, meaning that the person you have appointed to be the guardian of your child when you make your will, may not be suitable to look after your child at your time of death. This is why it is important to always revisit and update your will from time to time.

10. ‘A person who is left something in a will cannot act as an executor’ 

FALSE…

…a beneficiary (a person who inherits from the will) can indeed act as an executor. In many cases a person will ask a loved one to act as an executor, an example of this would be cases where one spouse leaves everything to the other spouse and the surviving spouse acts as executor of the estate.

What people may not know is that a beneficiary of a will cannot sign as a witness to the will and in the event that they do sign, they cannot receive any inheritance under the will. The will, however, is still valid.

J R PLUNKETT’ dedicated Probate Team have a wealth of experience in matters relating to making a will, for a confidential discussion please feel free to call JR Plunkett and talk to us on 01 234 3732 or email, info@jrplunkett.ie.