Where there’s a Will, there’s a way… but what if there is no Will?

Benjamin Franklin once said “in this world nothing can be said to be certain, except death and taxes.” The majority of us are aware of the importance of preparing for this eventuality and executing a Will but still a surprising number of us still don’t have one. In fact a 2024 survey found two-thirds of people don’t have one.

On a basic level, after someone dies, their property must be dealt with. If a person dies leaving a Will, they are said to have died “testate” and they will have set out in writing what they want done with their property following their death. A person who dies without having made a Will is said to have died “intestate” and their property is dealt with in accordance with the laws of Intestacy as set out in Irish legislation.

For a multitude of reasons, it is preferable to have made a Will. Not only does it ensure that your property is dealt with as you would wish but also it allows, where possible and legal, for the amount of tax payable by those who benefit under the terms of your Will to be minimised. Also for those who die without a Will an insurance policy must be put in place the cost of which is based on the value of the estate.

When making a Will you must appoint an Executor (or preferably, Executors, as we always recommend appointing more than one) who will be responsible for administering your Estate which means that they will deal with your property as you have set out in your Will.

While you may assume that you can dispose of your property as you wish, there are certain legal restrictions. For example, if you are married or in a registered civil partnership, then you must leave your spouse/partner at a minimum (you can obviously leave them all your Estate if you are so inclined) their “Legal Right Share” under the Will (unless they have renounced their rights or have been deemed “unworthy to succeed.”)

The rules determining the Legal Right Share of a beneficiary are set out in Irish legislation and are briefly as follows:

• If there are no children, your spouse/partner is entitled to one half of the Estate;
• If there are children, your spouse/partner is entitled to one third of the Estate (surprisingly this does not give rise to an automatic right for the children to the remainder of the Estate!)

A child does not have an automatic entitlement to any of their parent’s Estate where that parent has made a Will. However, if that child considers that they were not adequately provided for then it is open to them to take a court application.

An important consideration for many parents of “minor” children (children under the age of 18) will be guardianship of their children in the event of their death. This can be a difficult decision for most parents, but it is an important one and clarifying this issue can be one of the most important reasons for making a Will.

If you don’t make a Will, or for some reason your Will is deemed invalid, then your Estate will be divided according to the Rules of Intestacy as set out in the Succession Act as follows:

• If you have a spouse/civil partner but no children, then your spouse/civil partner will inherit all of your Estate (property);
• If you have a spouse/civil partner and children, then your spouse/civil partner will inherit two-thirds of your Estate with the remaining one-third being divided equally between your children;
• If you do not have a spouse/civil partner nor any children but your parent or parents are living then your Estate goes to them;
• If you do not have a spouse/civil partner but you do have children then your Estate will be divided equally between them;
• If you do not have a spouse/civil partner nor any children and your parents are deceased then your Estate is divided equally among your brothers and sisters;
• If you do not have a spouse/civil partner nor any children and your parents, brothers and sisters are deceased then your Estate is divided equally among your nieces and nephews;
• Failing the above, an Estate of a deceased person who has died without making a Will, will be divided equally between that person’s nearest relative or, in the event that there are no living relatives, the State will become entitled to the Estate.

One further thing to bear in mind is that any gift you leave to a person in a Will or any gift inherited on your death may be subject to Capital Acquisition Tax (CAT). Whether the person to whom you are giving the gift in your Will is liable to pay CAT, and the amount they may have to pay, will depend on both their relationship to you and any other gifts they may have already received (either from you or someone else).

Below is a brief summary of the different CAT Groups and the thresholds (i.e. the value of the gift they may receive without paying tax) that apply to that group.

Capital Acquisitions Tax group thresholds from 2 October 2024

Making a Will or dealing with a deceased persons Estate is a complex matter. To assist with preparing to make your Will we have published a Will Drafting Instruction Sheet – Homework for making your Will which helps you gather together the information necessary to make your Will. Should you require any further information on this please contact EOS Solicitors.