“If you think its just about making a will and dividing up what you own between your family you are mistaken it’s about protecting the next generation of family relationships, ensuring clarity, supporting family harmony and avoiding acrimony within your family after you are gone” – Sharon Cahir
• Thou shalt understand a will can be challenged
If a will is challenged successfully in court the will can be voided in its entirety or voided in part . Sometimes a prior provision made in an earlier will could
re-instated. Underestimating the law in estate planning, wills and succession is a costly exercise and more costly for the next generation. The law will protect your assets in line with the strict requirements of the Succession Act and with that know that invalidating a will , challenging a will or challenging the intention behind a will is available .So what you say? If an entire will is voided the court will distribute the property and estate as if no will had ever existed . In this instance the distribution of your estate would follow the rules of intestacy and the estate would be shared between the your next of kin – that may not be what you wished for at the time of making your will . A challenge may also protect your estate as a person may have been under duress or not had the capacity to make a will at the time they made one . So capacity and clarity are key
• Remember ‘The Fair Deal Scheme’ exists after death
The ‘nursing home loan scheme’ or as it has more commonly become to be known as the ‘fair deal loan scheme’ applies where the person in nursing home care has assets including land and property and they are contribution to the cost of their own care. The person availing of the Fair Deal scheme may choose to delay paying for their care during their life time and defer payment until after their death, using their assets as security for the deferred loan.
The person in nursing home care must provide written consent to having a Charging Order registered against their asset when choosing to defer the cost of their contribution towards their care. A charging order is completed .The Charging Order is a simple type of mortgage which secures the money that the Health Service Executive (HSE) loans to them in the form of a deferred payment .
The HSE pays the full cost of care to the nursing home on behalf of the person in nursing home care and the persons contribution is repaid at some time in the future. When the loan is due to be repaid, the HSE informs Revenue who then collects the loan on their behalf. During the administration of all deceased estates it is mandatory to enquire if there is any repayment due to the HSE.
• Honor the strict rules of valid will making
A will and the contents of a will can be challenged for a variety of reasons but the most common grounds are (1)The Lack of Due execution of a will where a will must be signed ( the person can sign by a mark if they are unable to write or sign) by the person making the will in the presence of two witnesses all three being in each other’s presence at the same time .(2) A person must have the mental capacity to make a will and be of ‘ sound disposing mind ’ to make a legally and binding will. (3) If a beneficiary named In the will becomes a witness to the will makers signature then that beneficiary perhaps a member of your family cannot inherit under that will . 2 independent witnesses are necessary so my advice is ‘ Thou shalt not make a home made will ‘ as these common errors are too easy to make . When you set about buying a ‘fill in the blanks pre printed’ Will in a shop you don’t know what you don’t know and it is all too easy to make an error . A home made will increases the risk of a will and your wishes being challenged after your death .
• Let not the state inherit your assets
The Succession Act states that if someone dies without a will and there is no one to take it under the rules for intestate estates then the state ‘ shall take the estate as the ultimate intestate successor ‘. However the Minister for Finance has the power to decide in favour of a person upon such terms, including or not including the payment of money , ‘ having proper regard to all the circumstances of the case ‘and pass the estate to them . I have applied successfully under the Act for a person close in proximity to the deceased but not related in blood . The application is fair and transparent and the state will review the merits of the case and propositions being made to it in favour of a person that should inherit over the state in an intestate estate . But avoid that by making a will . I say this specifically to all you bachelor farmers who are undecided as to how to make your will and who to give the farm to . Not making a will leaves your holding open to being inherited by more than one person and divided between all your next of kin . Giving one to many means the farm is at risk of being sold !
• Thou shalt update your will in ages and stages
Every stage and age brings with it a different consideration for the passing of your assets to your next of kin. there are many reasons to review and update your will and other estate planning documents. For instance, let’s say you’ve found the love of your life and want to make sure they are now included in your will and estate plan, either before or after marriage. Now is the time to update your will. Have you had a new baby or adopted a child? Are you going through a divorce or separation with the former love of your life? Have you bought or sold a significant or valuable asset? Aer your children now over 18 years of age ? Sometimes you need no reason just review your will every 5-8 years .
• You shalt attend a Will consultation and plan ahead
Acta non verba is the famous latin phrase ‘Actions not words’ I ask you to consider the most important will making commandment of all . Thou shalt make a will . Don’t underestimate the significance of a will consultation and having a sounding board for all the small queries that seem small. Every week I meet people that have put off making will or a plan , discussing the relationships between potential beneficiaries , worried about how make challenging decisions because someone may be offended , be upset . You have wisdom, you have personal wishes so go ahead and make your will and do what you want to do with your assets . I love what Steve Jobs said “Don’t let the noise of others’ opinions drown out your own inner voice. And most important, have the courage to follow your heart and intuition ‘.