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Wills and Probate

While we appreciate the difficulty associated with losing a loved one you are not obliged to accept an unfair Will. So what is a will?

A will is a document which is witnessed by 2 witnesses which sets out in writing the deceased's wishes for his or her possessions after death. This will can be changed at anytime by the person who has made the will. The document used to change such will is called a codicil; this is a supplement or addition to a will. A codicil may explain, modify, add to, subtract from, qualify, alter or revoke existing provisions in a will. Because a codicil changes a will, it must be signed in front of witnesses just like a will. 

It is important for you to make a will because if you die without a will, the law on intestacy under the Succession Act, 1965 decides what becomes to your property. By making a Will you can ensure that your property is distributed in a way that you want. Under the Succession Act 1965, certain rights override a Will and are known as, ‘legal right shares’. These legal right shares are associated more with spouses of the deceased and can displace a share left in a will

What happens if you die having made a will

Once you have made your will, in law you become what is known as a testator (male) or testatrix (female). As part of making that will, you will appoint an executor or executors. The position of the executor(s) is to carry out your wishes in the will and distribute your property in the way that you have set out when making that will. An executor can benefit under your will but can not witness it, similar, a person who witnesses your will can never inherit any property under that will. These are some of the rules associated with the making of a will. When that person having made a valid will dies they are said to have 'testate'. If you die testate, then provided that your will is valid, it will be distributed by your appointed executor(s) in accordance with your wishes.

As part of the duty of executor(s), those appointed in the will has to deal with your estate by gathering together any money which you may have left behind together with your possessions, they will pay any debts you may owe and then distribute what is left to the people who are entitled to it.

Prior to carrying out your wishes and distribute your possessions under the will, the executor or one of them will apply to the Court of Probate for legal permission to carry out this function. Basically, this occurs when an application is made for a Grant of Representation, a document granting permission to administer your estate according to your will. This document is obtained by application to the Probate Office District Probate Registry for the area where you lived at the time of death.

Where for some unforeseen circumstances the executor(s) are unable to make such application or maybe a situation where one was not appointed in your will to make the application for the Grant of Representation, documents called Letters of Administration are granted, this allows your estate to be distributed according to your wishes.

What happens if you die without a will or your will is invalid

A person having dies without a will is said to have died 'intestate'. In the event of death and a person has not made a will or when a will is declared invalid for whatever reason, your estate will be distributed in accordance with the rules of intestacy. If you die intestate, your estate is administered by an administrator. To have legal permission to distribute your estate, the administrator will have to apply through the Probate Office or District Probate Registry for the area where you lived at the time of death for Letters of Administration. These Letters of Administration allow the Administrator to distribute your estate under the rules of intestacy.

So what are the Rules of Intestacy:

If the deceased is survived by
• spouse/civil partner but no children - spouse/civil partner gets entire estate
• spouse/civil partner and children - spouse/civil partner gets two-thirds, one-third is divided equally between children (if a child has already died his/her children take a share)
• parents, no spouse/civil partner or children - divided equally or entirely to one parent if only one survives.
• children, no spouse/civil partner - divided equally between children (as above)
• brothers and sisters only - shared equally, the children of a deceased brother or sister take the share
• nieces and nephews only - divided equally between those surviving
• other relatives - divided equally between nearest equal relationship
• no relatives - the state

It is important that you know exactly your legal rights prior to the making of a will, however, it is equally important that you know exactly your rights in the event that you are not satisfied with the way an estate of your loved one has been distributed under a will or where that person has died without making a will or where a will is to be declared invalid therefore we at C N Doherty & Co. Solicitors have the experience to guide you through the process from beginning to end.

Where you feel that you need advice regarding any issues discussed above or to discuss your concerns regarding any aspect of an estate, please contact us click here or make an appointment and we will be happy to assist.