Ensuring your estate goes to those you wish

Barrister and author Tim Bracken provides a list of frequently used words and questions that often arise in relation to probate matters

Death is not a subject many of us are comfortable discussing and it follows that we give little consideration to what happens to our estate after we die. Our estate means the assets we have on death.

By making a Will, a person can ensure that their estate goes to those they wish. Provision can be made by way of trusts for infant children and those with special needs. Professional advice in the making of your Will will help to identify tax issues which will arise on your death. When a person dies having made a valid Will, he is said to have died testate.

When a person dies without having left a Will, he is said to have died intestate. In such a case, their estate is dealt with in accordance with the terms of the Succession Act 1965.

The division of the estate may well be in a manner not envisaged by the deceased person. Understandably, this could result in hardship and unfairness for some members of the family and even the surviving spouse or civil partner. For instance, in the example below, the son who has worked the farm all his life in the expectation that one day it would be his, might find himself sharing it with his siblings who left it years before.

Similar to other areas of law Probate Law has its own body of words and phrases which may be confusing to some. The following is a list of frequently used words and questions which often arise in relation to probate matters.

What is a will?

A Will is a solemn document in writing executed by a person giving directions as to the distribution of their estate after their death.

What is the difference between dying testate and intestate?

A person is said to die testate when they leave a valid Will and intestate when there is no Will.

What is a testator?

A testator is a person who executes a will.

What is the difference between a grant of probate and a grant of administration?

A grant of probate issues to an executor named in a will; a grant of administration issues to an administrator in the estate of a person who dies intestate. The executor or the administrator will administer the estate.

What is an executor?

An executor is a person named in the will by the testator to whom the proving of the will by way of grant of probate and administration of the estate are entrusted.

What is an administrator?

Is a person appointed by a grant of administration intestate to administer the estate of a person who dies intestate..

What is a personal pepresentative?

A personal representative is used to describe either an executor to whom a grant of probate has issued or an administrator to whom a grant of administration intestate has issued.

What is “an estate”?

The estate of a deceased person consists of all of the property of the deceased person.

Is there any advantage in me making a will?

If you die leaving a Will your estate will be divided in accordance with the terms of your Will. If you die intestate, because you have not left a Will, your estate will be divided in accordance with the terms of the Succession Act 1965 in a manner which may not reflect your wishes.

I am a married man with three children, aged 22, 20 and 18. All of the property is in my name. What happens if I die without having made a will?

After your death you property will be divided as follows: two thirds to your wife and one third between the children giving them one ninth each. The children are entitled to their shares immediately. This can cause enormous difficulties particularly if they want their share out of the family home. Furthermore, your eighteen year old may if you have left a large estate be in line to receive a large benfit at that tender age.

My mother is an elderly widow who owns the farm. I have four siblings who all went to live in the US years ago. I have worked the farm all my life. What happens if she does not make a Will leaving the farm to me?

If your mother does not make a Will, after her death you will only have an entitlement to one fifth of the estate — and each of your siblings are entitled to a one fifth each.

I am living with my girlfriend for the past 10 years. We are living in rented accommodation. I and divorced and have four children from my marriage. I have insurance policies and a number of bank accounts. What happens to my girlfriend if I do not make a will?

If you do not make a will, she will get nothing and your four children get one quarter each.

What is capital acquisitions tax?

Capital acquisitions tax comprises gift tax and inheritance tax. Gift tax is charged on taxable gifts taken (other than on a death) on or after February 28, 1974, and inheritance tax is charged on taxable inheritances taken (on a death) on or after April 1, 1975.

How much can I leave my spouse free of inheritance tax?

There is no limit on what you can leave your spouse.

How much can I leave my grandchildren, or brothers and sisters, nephews or nieces free of inheritance tax?

Provided the person inheriting has not received previous gifts or inheritances from similar sources the amount of the tax free threshold for 2011 is €33,208.00

How much can I leave to someone not related to me free of inheritance tax?

Provided the person inheriting has not received previous gifts or inheritances from similar sources the tax free threshold for 2011 is €16,604.00.

I will inherit the family farm of 100 acres from my parents when they die. It is valued at about €1m. Will I have to pay an enormous amount of inheritance tax?

No. If you qualify for agricultural relief under section 89 of the Capital Acquisitions Tax Consolidation Act 2003 the market value of the agricultural property is reduced by 90% therefore valuing your inheritance for inheritance purposes at €100,000 which is below the tax free threshold of an inheritance from a parent.


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