You can’t take it with you! – the importance of making a Will – Paul Farrelly

You can’t take it with you! The importance of making a Will – Paul Farrelly

You can’t take it with you!

Although it’s inevitable, nobody likes to think about death. However, out of consideration for those who are left behind it is better to plan ahead and to consider making a will.

Choosing to cohabit rather than to marry, choosing to have children or not, are decisions that may have unexpected legal consequences for those dear to you. The law acts to protect, for the survivor, a part of the estate of a person who dies having made a will (testate), or without having made a will (intestate). There is a common misconception that the survivors’ rights are the same whether or not the couple were married but this is not correct.

What happens to a person’s property when s/he dies depends on whether the person was single, married, in a civil partnership or cohabiting, whether or not s/he had children, and on whether or not s/he had made a will. If there is no will the property is divided according to set rules. If there is a will there are restrictions on how a person may dispose of his/her assets where there is a spouse/partner/children.

People requiring special consideration:

  1. Spouse: The person you have legally married (of the opposite sex or the same sex) and have not divorced.
  2. Civil partner: the person of the same sex with whom you have entered into a Civil Partnership.
  3. Cohabitant: The person with whom you are living in an intimate and committed relationship – (of the opposite sex or the same sex).
  4. Children.

A. If you leave a will…

A will is a legal document which sets out how your estate (property, money and all belongings after debts have been cleared) is to be divided on death and who is to benefit from it.

Making a will

A will must be in writing. It must be signed by the testator (the person making the will) in the presence of two witnesses (the witnesses do not have to see the provisions of the will). It must be signed by the witnesses in the presence of the testator (after he/she has signed it) and in the presence of each other. A beneficiary under the will or the spouse of such a beneficiary should not act as a witness to the signing of the will. The will must nominate an executor(s) who will distribute the estate as set out in the will. The executor(s) may also be a beneficiary under the will.

It’s my property and I can do what I like with it!

That is true unless you have a spouse/civil partner, cohabitant and/or children, in which case the law sets certain limits on what you can do.

If the Testator is Married or in a Civil Partnership

A testator can leave all or part of the estate to his/her spouse/civil partner, but regardless of what the will provides, a surviving spouse/civil partner has a minimum entitlement referred to as a “legal right share”; one half of the estate if there are no children, or one third if there are children. (The children have no automatic legal right share). It is not necessary to go to court to have this share paid out because the person administering the will, the executor, has the duty to pay it out of the estate.

The surviving spouse/civil partner may require that the family/shared home be given to him/her in satisfaction of his/her legal right share, although if the house is worth more than the legal right share, the spouse/civil partner may have to pay the difference into the deceased’s estate. A court may decide that this sum does not have to be paid if it would cause undue hardship to the spouse/civil partner or dependent children.

If the Testator is Cohabiting

A testator can leave all or part of the estate to his/her cohabiting partner in the will, but there is no obligation to. The surviving partner has no entitlement to a legal right share. (Note: A surviving spouse or civil partner from a previous relationship is still entitled to a legal right share). The surviving partner may however apply to the courts for redress if he or she can prove:

  •  That they have cohabited for 5 years or 2 years if they have a child together.
  • The applicant can prove to the court that a ‘reasonable person’ would accept that they had been in cohabitation.

The court may make ‘proper provision’ for the surviving partner and will give priority to the accommodation and the present and future income needs of the survivor if the estate is sufficient.

B. If you die Intestate (without making a will)…

If you are Married or in a Civil Partnership

  • If there are no children the surviving spouse or civil partner inherits the entire estate.
  • If there are children the surviving spouse or civil partner inherits two thirds of the estate and the remaining one third is divided between the children.
  • If both parties are dead the estate is divided between the children.
  • If there are no relatives at all the estate goes to the State.

If you are Cohabiting

Cohabiting couples have no legal right to each other’s estates. The surviving partner may apply to the court for redress if he or she meets certain requirements (see above). (Note: A surviving spouse or civil partner from a previous relationship is entitled to a legal right share). The remainder is divided equally between all children of the deceased person.

C. Children

All children’s rights are equal whether or not their parents are married. A parent is not obliged, when making a will, to leave anything to his/her children. A child (adult or minor) may apply to the court if he/she considers that “the parent has failed in his moral duty to make proper provision for the child in accordance with his means” when making a will. In the course of their lifetime the parent has a duty to house, clothe, maintain, feed and educate a child and to make some provision “by way of advancement for them in life”. It is easier for a child under 18 to establish the parent’s failure in moral duty but the court will consider all the relevant circumstances. Legal action must be initiated within six months of the grant of probate.

D. The Family Home

What happens to the family home depends on who owns it. If it is owned jointly the surviving partner automatically inherits the deceased partner’s interest in the house. If the couple were married or were in a Civil Partnership there is no tax liability, but if they were cohabiting there may be.

If the deceased has sole ownership of the house then it is part of his or her estate in its entirety.

  • Where there is a surviving spouse/civil partner the house may be used in full or part satisfaction of the legal right share and where it is the family home the court may award it to the surviving spouse even where it is worth more than the legal right share.
  • Where there is a surviving cohabitant an application for redress (see above) can be made.

Conclusion

The making of a will does not cost very much but it can mean that the burden of the surviving partner and any children is greatly lessened and the likelihood of legal action being necessary is greatly reduced.

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