Estate Planning Legal Terms Explained
Blanchardstown, Castleknock, Dublin City Centre
Legal Jargon
Let’s get some of the legal jargon probate solicitors use out of the way first. In law, language is important and it must be precise and so there are some terms used in this piece that may mean nothing to you or seem confusing. We have used these words here as otherwise, it may be unclear what we are talking about. Likewise, if you do not know what some of the words mean in law, then it may be hard to follow:
- Will: easy one to start with; the written instructions of what to do on the death of a person (called the Testator).
- Testator: the person who makes the will.
- Estate: Everything that was owned by the Testator. This is what is distributed by the Will.
- Executor: the person named in the will who deals with the will after the Testator’s death and ensures that all debts are paid and that the beneficiaries get what they are left in the will.
- Beneficiary: someone who has been left something in a will.
- Gift: what someone is left in a Will. Can also be referred to as a Bequest or a Legacy.
- Succession Act: the main piece of law that deals with Wills.
- Children: can be any age (the oldest we dealt with was in their 70’s) and include adopted children and in certain cases beyond this.
- A Trust: A special way of leaving a gift to someone in a will so that the beneficiary gets the benefit of but not the ownership of a gift.
- Trustee: someone who looks after the Trust. They are named in the Will.
- Guardian: A person named in a Will to look after a child or an incapacitated person.
- Testate A person who dies having made a valid Will is deemed to have died testate.
- Intestate A person who dies having not made a Will, or where the will is invalid is deemed to have died intestate.
- The Statute The length of time a person has to do certain things or make certain challenges against a will or invoke certain rights. The expression Statute Barred means that you are too late to do something. In Succession Law, these time limits can be very short, as little as 6 months. If you need advice you should not delay as there are no extensions of time allowed.
- Caveat: A document that is lodged in the Probate Office to stop an estate from being administered and, therefore, distributed.
- Spouse: a husband or wife or civil partner (excludes a co-habitant).
- Probate: the formal process for the distribution of assets (the estate) by an Executor under the terms of a will.
- Probate Office: The official office which deals with Probate applications.
Frequently Asked Questions when considering making a Will.
Do I need a Solicitor to make a Will? Why not just make a home crafted Will?
Some people will create their own will in order to save time and legal costs. Even if the will has been drafted in accordance with the required principals, it is still open to challenge before the Court. If a testator has not taken proper legal advice, it can easily be assumed that the will is not valid. This is not necessarily true, but it can be quite costly if a challenge is brought before the Courts.
Mr. Justice Senan Allen of the High Court of Ireland stated In the Matter of the Estate of Patrick John Mannion [2021] IEHC 117, that when a will was prepared without the benefit of legal advice, the thinking was that it would save paying a Solicitor to prepare it on his behalf. However, a challenge to the High Court was very costly indeed and was ultimately paid from the estate of the testator, he stated “If in a roundabout way, Fr. Mannion’s object that Mr. Shields should administer his estate has been achieved, his object in avoiding lawyers’ fees has fairly spectacularly failed. The costs of this application must be borne by his estate.
A homemade or a generic stationary Will might seem like a great saving. It may save €300 to €500 in legal fees, depending on the complexities of the Will, however, if challenged in the High Court the costs to the Estate ultimately could cost many, many, multiples of that sum, indeed a six-figure sum is not out of the question for the cost of a High Court hearing allowing for numerous sets of legal costs between the Estate and the Will challenger, and beneficiaries. Taking expert advice in your legal life planning from highly experienced Wills and Probate Solicitors could ultimately be the best value legal advice you spend when you consider the alternative ‘bleak house’ type scenario.
The case of Mannion above, is not the only recent case that demonstrates the value in having legal expertise and input into the making of your Will.
Ms. Justice Úna Ní Raifeartaigh stated in the similar case of In the Matter of the Estate of Mary Philomena Maureen McEnroe [2021] IECA 28 that “The appellant had no choice but to bring the application in order to get a grant and administer the estate, and the difficulty arose out of the actions of the deceased herself, not by reason of any conduct on the part of the appellant. Accordingly, we will grant the costs of the appeal and reverse the High Court decision and award the High Court costs to the appellant also, both to come from the estate in due course.”
Not getting proper legal advice ultimately cost the deceased estate a significant sum, which is clearly not what the testator intended. It is always beneficial to seek legal advice. The testator may have saved the small fee by not going to a solicitor, but ultimately cost her estate legal fees in excess of €250,000.Avoiding a small cost now can give rise to wholly unintended consequences.
Why should I make a Will?
There are many benefits to making a will/estate planning, while the consequences of not doing so can be very costly for the estate and disastrous for the survivors particularly if there are children involved.
Everyone who has assets should make a Will.A Will is particularly important if you have children, even more pressing if you are a younger parent and have young children to protect.Wills should not be viewed as a preserve of the older person.
Children under 18 years, whose parents have not made a will, stand to lose the most. Without a will, the next of kin of these children will have to make an application to the court to have executors and trustees appointed to administer the assets of the estate. All discretion is taken away from the family and decision-making is left to bureaucracy. The cost and stress can be enormous.
A Will is not just relevant for people with substantial assets, it is relevant for all persons who have responsibilities.
In the absence of a Will control is effectively lost over the distribution of assets on death and the provisions of the Succession Act 1965 apply and the law determines who is to inherit and who is to be responsible for the administration. Unfortunately, in many cases, this can be quite often contrary to what the deceased person wished for and can result in the most unsuitable person assuming the role of a personal representative. Contact our probate solicitors in Blanchardstown if more information is needed.
I made a Will many years ago, should I update it?
Just because you have made a will in the past, does not mean you cannot make another one and amend the terms as you wish. You can change your will at any time, and as often as you like. Remember, a will is about your wishes and you are entitled to change your mind.
It is especially important to update your will if your circumstances have changed. A change in circumstances could be anything from the sale of property, if you get married, have a child, the death of a family member etc. If you update your will after a change in circumstances, it is less likely to be challenged before the Courts.
Good intentions can still lead to a challenge of a will. High Court Judge, Ms. Justice Nuala Butler, discussed this on the 26th of February 2021 when she stated that
“In normal course, where a testator makes a gift in his will of a specific item of property which no longer exists or which he no longer owns at the date of his death, the gift will fail and is said to be adeemed. To determine whether a gift has been adeemed, the court must construe the terms of the will to ascertain exactly what the testator intended to leave. In particular, a court must look to the extent to which the phrasing of the gift by the testator can be taken to have contemplated a change in the form of the property the subject of the gift. Obviously, a gift that is phrased generally will be far less likely to be held to have been adeemed than one which is phrased specifically.”
This case related to a gift of shares left in a will. The shares in question no longer existed as described in the will meaning the gift was invalid. The change in the name and type of gift specified at the time when the will was made, ultimately meant the provision in the will was invalid.
A testator needs to be mindful of any change, big or small, which may alter his or her will contrary to what was intended. If you are in doubt, seek legal advice. You may not need to change the terms of your will, but it is always better to be safe than sorry. A small error could end up costing your estate thousands in Court Costs.
To proceed
If you wish to proceed, please telephone our office and we will send you a formal fee estimate and some initial information and an instruction sheet to review.
To progress, we will need to put in place a retainer to act and you will need to revert to us by email or telephone with:
- Your name and home address
- Your contact telephone number
- A scan copy of your passport and a utility bill with your home address.
We will then arrange to furnish you with an instruction sheet for completion and return ahead of arranging your first consultation by telephone.
When preparing for your Wills Consultation, it is useful to have the following information to hand:
- An outline of your financial assets and liabilities
- The names and addresses of those who you wish to benefit
Once an appointment is arranged Carmody Moran Solicitors will in consultation provide such expert legal advice andthis gives you an opportunity to review your situation and ask the expert questions regarding your specific circumstances.We will then work with you to explain the various considerations when making your Will in plain english, take full instructions and prepare a draft Will for you to review before arranging for execution of your Will.
Preparation and Execution of Wills during Covid
In most cases during the Covid-19 emergency, we shall arrange a telephone or digital consultation with you following receipt of your completed instruction sheet. We will then prepare a draft of your Will and we can either:
- You can attend in your car the carpark to the rear of our building and we will witness your Will through your car window.You will need to bring your own pen and comply with all social distancing / HSE guidelines, or alternatively,
- We can discuss with you arranging for the digital execution of your Will via zoom consultation, you will need to arrange to have two witnesses available for this purpose who are not beneficiaries of your Will, or related to beneficiaries, and both witnesses and you will need to be present for the digital consultation.
- If you wish, we can meet with you at your home or garden (travel time will apply bearing in mind we will have to bring two staff members to witness your Will).
If you wish to proceed to make an appointment, please telephone us on
01 8272888 or Email: [email protected] | Web: www.carmodymoran.ie
11/12 The Plaza, Main Street, Blanchardstown, Dublin 15D15YY2R
Call the office in Dublin on 00-353-1-8272888 to make an appointment to meet and discuss making a will further or use the quick enquiry form here.
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Your Wills and Probate Legal Team in Dublin City Centre
At Carmody Moran Solicitors our experienced property and conveyancing solicitors in Dublin are on hand to advise and are skilled in handling all nature of making a will in Ireland.
The two partners of Carmody Moran solicitors have a combined total of in excess of twenty-five years of professional legal experience. Together with their associates, they aim to make the Court process as straightforward and navigable as possible while being on hand to alleviate their clients’ concerns and worries about going through the Court process.
Anthony Carmody
Anthony Carmody is one of the founding Partners of Carmody Moran Solicitors.
He has significant experience in personal injury cases and general litigation having handled literally thousands of cases on behalf of clients based in Ireland and abroad.
Niamh Moran
Partner
Niamh Moran is one of the founding partners of Carmody Moran Solicitors and is a solicitor with wide ranging experience across all areas of general practice.
Niamh manages the family law, conveyancing in Dublin, and probate divisions of the practice. Niamh’s practice of law is extremely varied and she is regularly sought out for her expertise by clients and colleagues alike.
*While we have made every effort to provide accurate information, the law is always changing and it affects each person differently. This information is not a substitute for specific advice about you personally and it is not intended as legal advice. We will not be liable to you if you rely on this information. In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement. This statement is made in compliance with Reg.8 of SI 518 of 2002.
You should note that no solicitor/client relationship or duty of care or liability of any nature shall exist or be deemed to exist between Carmody Moran Solicitors and you until you have received a written letter of engagement from us in which we confirm our appointment as your Solicitors.
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