Everyone should have a will.

Making a will is one of the most important decisions that you will ever make. As a legal document, it ensures that proper arrangements are made for family and friends, and that your assets will distributed in the way you wish after you die, subject to certain rights and conditions. With so many benefits associated with this important process, the decision to make a will should be straightforward.

If your wishes are not expressed in a will, then the law (called Succession Law) determines how your estate is distributed according to strict legal rules. It can also mean that your estate might not be divided in accordance with your wishes.

Why make a will?

There are a number of important reasons why a person should make a will but the most important reason is that you decide what happens to your estate when you are gone. Your will should be prepared by a solicitor who will advise you of the tax and legal implications of your decisions and who will use your outlined instructions to draft your will. Before making an appointment with your solicitor, it is helpful to take note of the following:

  • Your assets, their value and their location.
  • Your nearest relatives.
  • Your guardian(s) for children, if applicable.
  • Your executor(s).
  • The proposed division of your estate – which refers to all of the money, property, assets, interests and things of value controlled by a person while alive.

Your solicitor can then take you through any legal restrictions (if applicable), special circumstances, inheritance tax and types of will.

To search the list of all registered solicitor firms, please visit Law Society of Ireland

When should you make a will?

To make a will you must be 18 years or older, be of sound mind and acting of your own free will. Your will must be in writing and must be signed by two witnesses for it to be valid. There are a number of key events in the course of a lifetime that act as a trigger to make a will. These include:

  • When you get married
  • If you are going abroad
  • If you get divorced or separated
  • When you buy/inherit a house or become the owner of property or cash
  • When you start a family
  • Upon retirement, getting older or if suffering from an illness

Remember, you can change your will at any time and as often as you like. In fact, it is highly recommended that you regularly review your will, especially if your circumstances have changed.

What is the difference between a Will, a Living Will or an Advance Healthcare Directive and an Enduring Power of Attorney?

A Will is a document that most of us are familiar with. It is a formal legal document setting out how you would like your property and money (your ‘estate’) to be distributed when you die; naming your beneficiaries and what you wish to leave them. It appoints executors to administer your estate and, if you have children who are minors, you can appoint guardians and trustees to look after them. If you wish to leave a gift to a charity, you can do so in your Will and the charity will receive it tax free. A Will only operates from the point of death.

On the other hand, an Advance Healthcare Directive, also referred to as a Living Will, is a legally binding document which you can create when you have capacity and it sets out essentially what healthcare treatment you would like to receive or not receive in the event that you become unwell. It is a document that you can share with your doctor, your hospital and your loved ones so that they know what your wishes are in the event that you are unable to express them for yourself. The Irish Hospice Foundation has an excellent booklet – Think Ahead – setting out what is required to make an Advance Healthcare Directive.

An Enduring Power of Attorney (EPA) is somewhat similar in that it is a document that you make when you have mental capacity setting out who can make decisions for you should you lose your mental capacity. An EPA allows the donor (yourself) to appoint one or more people you trust (your attorneys) to make decisions either solely, jointly or jointly and severally (separately) concerning your finances and personal care. After it is made an EPA remains dormant and only becomes operative if you lose your mental capacity as certified by medical professionals. The EPA then becomes registerable in the Office of Wards of Court.