- If you are married with children and die without making a Will, it is not the case that your surviving husband/wife will be entitled to all of your property held in your sole name (excluding property held in joint names) i.e. house, land, money etc. This is a common mistaken belief. The law states that in this instance your property will be divided between your husband/wife and your children.
- Every husband/wife has a legal right share i.e. an entitlement to a certain proportion of their wife’s/husband’s property upon his/her death. There are rules and procedures to protect a person in the event that their husband/wife makes a Will and either excludes their wife/husband or leaves them something in the Will which is less than the value of what their legal entitlement is i.e. the legal right share.
- When a person dies and leaves a person something in their Will, that person may have to pay inheritance tax to the Revenue Commissioners. Whether or not tax is payable depends on the following:
(a) The relationship between the person dying and the person receiving property under the Will;
(b) If the person receiving the property (known as the beneficiary) has ever received prior gifts or inheritances (under a Will) since 5th December 1991 and, if so, from whom and the value of same.
- Property held jointly between husband and wife and/or parents and their children passes automatically to the survivor irrespective of what the deceased person says in their Will. This is because there is a presumption of advancement between these parties which means that the law presumes an intention to benefit the surviving party in these types of relationships.
- The making of a Will requires thought – not only as to whom you intend leaving your property to, but why you are doing so. Is it practical to leave a house between all of your children? Can they realistically all live together in the one house? What if they get married? Is it practical to leave your farm to one child and your house to another child if the house and farm are situated in the one yard? Will the person you leave property to have to pay inheritance tax? Can they afford it? Have they received previous gifts/inheritances?
Making a Will is not a task that should be done in a rush. It requires thought and time. You should seek advice on the law relating to Wills, the practicality of what you are proposing and the tax implications of what you propose.