TRUSTS WILLS &PROBATE

Making a Will

A will is a document that sets out in writing the deceased's wishes for his or her property and possessions, (called his or her 'estate'), after death. It has to be witnessed by 2 people who see the you sign the will. A will can be changed at any time revoking any previous wills.

It is important to take advise when making a will to insure you know the implication of any bequest you make. Remembering always this document represents your wished and not those of anyone else. Your will is private to you and cannot be shown to any person unless you direct it to be.

Reasons for making a will

It is important for you to make a will because if you do not, and die without a will, the law on intestacy decides what happens to your property. A will can ensure that proper arrangements are made for your dependants and that your property is distributed in the way you wish after you die, subject to certain rights of spouses and children.

What happens if you die having made a will

If you have made a will, you are called a testator (male) or testatrix (female). A person who dies having made a valid will is said to have died 'testate'. If you die testate, then all your possessions will be distributed in the way you set out in your will. It is the job of the executor or executors you named in your will to make sure this happens. There are legal limits as to how much of your property goes to which person, as set out in law in the Succession Act, 1965. An executor can be a beneficiary under the will. In other words, the executor can also inherit under the will.

After you die, somebody has to deal with your estate, by gathering together all your money and possessions, paying any debts you owe and then distributing what is left to the people who are entitled to it. If you leave a will before you die, one or more of the executors you named in your will usually has to get legal permission from the Probate Office or the District Probate Registry for the area in which you lived at the time of death to do this. Permission comes in the form of a document called a Grant of Representation.

If you did not name any executors in your will or if the executors are unable or unwilling to apply for a Grant of Representation, documents called Letters of Administration (With Will) are issued. When your estate is distributed, the legal rights of your spouse and children, if any, will be fulfilled first after any debts are paid before any other gifts are considered.

What happens if you die without a will or your will is invalid

A person who dies without a will is said to have died 'intestate'. If you die intestate, this means your estate, or everything that you own, is distributed in accordance with the law by an administrator. To do this, the administrator needs permission in the form of a Grant of Representation. When a person dies without a will or when their will is invalid, this Grant is issued as Letters of Administration by the Probate Office or the District Probate Registry for the area in which the person lived at the time of death.

Rules:

Distribution of your estate when you die intestate or have not made a valid will

The legal rules governing the distribution of your property apply:

  • When you have not made a will

  • When the will has been denied probate because it has not been made properly or a challenge to it has been successful

  • When the will does not completely deal with all your possessions.

In these cases, after debts and expenses have been deducted, the estate is distributed in the following way.

If you are survived by:

  • A spouse but no children (or grandchildren): your spouse gets the entire estate.

  • A spouse and children: your spouse gets two-thirds of your estate and the remaining one-third is divided equally among your children. If one of your children has died, that share goes to his/her children.

  • Children, but no spouse: your estate is divided equally among your children (or their children).

  • Parents, but no spouse or children: your estate is divided equally between your parents or given entirely to one parent if only one survives.

  • Brothers and sisters only: your estate is shared equally among them, with the children of a deceased brother or sister taking his/her share.

  • Nieces and nephews only: your estate is divided equally among those surviving.

  • Other relatives only: your estate is divided equally between the nearest equal relationship.

  • No relatives: your estate goes to the state.