Is it advisable to make my own will? Can I prepare something myself that will stand up legally?
The simple answer is yes you can, but I cannot guarantee that it will stand up legally. A Will is necessary if you want to specify how your personal wealth and valued possessions are distributed after your death. There is a lot of language used by lawyers that may be intimidating in preparing a Will. However, I hope that the below will assist you in demystifying same. Essentially, a Will is a list of your wishes on how your assets/net worth is to be distributed after your death. Provided you follow the below simple guidelines, you can create a legally binding Will. A Will is a legal document containing your instructions for how your Estate (your net worth i.e. your total assets minus your total liabilities), at the time of your death, should be distributed after your death. Assets include cash held in bank accounts and investments like bonds, shares and pensions and property. Houses are classified as “real property”. This is to distinguish it from personal property which consists of cars, collectibles and jewellery. Liabilities consist of outstanding debts like personal loans, mortgages and any other unpaid financial obligations. You can leave a specific bequest of any asset to specific beneficiaries.
The Residue of the Estate is the balance of your assets after your debts, funeral expenses, taxes, and any other outstanding balances have been paid and does not include the specific bequests. If you do not leave the residue of your Estate to one or more beneficiaries, it will be distributed as provided by a law called the Succession Act, which may distribute your Estate differently to what you may have done by Will.
There are several parties involved in a Will and each party plays a very specific role. The person who is making the Will is called a Testator (male) or Testatrix (female).
The Executor (male) EXECUTRIX (female) is the person (or persons) who the Testator/Testatrix appoints to perform (execute) your wishes contained in the Will. A Beneficiary is someone who will receive some or all of your Estate upon your death. You may name as many beneficiaries and you like. You can give specific gifts or the residue of your Estate can be divided between your beneficiaries. The person you want to be the Executor may also be a beneficiary listed in your Will. Therefore, your son or daughter can be both a beneficiary and an Executor. You can appoint anyone you like to be your Executor but I would recommend someone who you think will be good at administration as there are various tasks that an Executor will have to complete on your death. Please do not worry about these tasks at this stage. For now all you need to do is to ensure that you name whom you wish to be the Executor in the Will. It is advisable, given the current climate, that you should name more than one person as Executor and it would be courteous to discuss with them your proposed appointment of them as Executors and ascertain if they are willing to accept the role before you put their name into your Will.
A Guardian is one or more persons you want to care for your children (under 18) after your death. Again, you should take care to select someone who is trustworthy and can handle the responsibility and who agrees to be a guardian.
patA Witness is someone who authenticates the completed Will. In Ireland, you must have two witnesses. Please ensure that they are over 18 years old and that they are not a beneficiary in your Will. They need to see you sign and date your Will and then they need to each sign the Will. Your signing of the Will must be witnessed by the two witnesses, all three of you being present at the same time. Each witness must then sign the will in your presence and while it is not necessary for them to sign the will in each other’s presence, the best practise is that all three of you are present while each of you each sign the will. In the Will, you will need to include vital information consisting of: your full name and address; a revocation clause which is a statement that you revoke or cancel any previous wills that you previously made; the names and addresses of your Executors (and guardians if appropriate) that you wish to appoint. Then list the specific items that you want to go to any person (whose name and address should be given). Then specify who gets the residue of your Estate, again giving the names and addresses of the beneficiaries. (Note – a person who receives a specific bequest can also share in the residue if you wish).
The above is a simple guide to drafting a Will in an emergency. If you make your own will, I cannot guarantee that it will stand up legally. We would not recommend that you make your own will. There are so many issues to consider including tax planning issues that would be pertinent to each individual testator. A Solicitor can assist you as the Government has deemed legal services such as drafting a Will as an essential service. Therefore, my advice is to consider the above and to prepare a draft and to then instruct a Solicitor. Many of my colleagues are practicing remotely (online) and are available by phone providing their expertise to the public during these uncertain times.
We got a number of queries about making wills during Covid-19 and we made them – in accordance with the Law Society Wills guidance sent by email 23 March 2020 (guidelines and assistance on how Solicitors should assist people in making wills during Covid-19).
Pat Daly, Partner, Cantillons Solicitors
Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or email@example.com if you would like more information.
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