Wills

During the current pandemic, I am providing video calls to prepare wills. The law requires a Will to be signed in the presence of two witnesses, who must be present in the room at the same time as the person signing the Will. Both witnesses must then sign the Will to confirm they witnessed the person signing the Will. The witnessing can be done while social distancing or through a window.

Shona Madden
Solicitor

Madden Law – The legal experts in preparing Wills 

Why choose Madden Law when making your Will?

We have over ten years experience in drafting both simple and complex Wills. We provide transparent costs. We  give straight forwards forms, to ensure  that the process is as stress free and  straight forward as possible.  We take care of the witnessing and storage of the Will. We offer a range of flexible appointment options. We offer video consultations to discuss your Will. These can be booked online at a time that suits you.  There is ample free parking outside our office. Our office at the Bryanstown Centre, Drogheda is fully wheelchair accessible. 

What happens to your old Will when you make a new Will?

When a new valid Will is signed, it revokes the older Will. Usually, the older will  is not destroyed. It is simply kept with the new Will. There is no requirement to bring an old Will in when making  a new Will. Often it will be helpful to discuss why a new Will is being made and therefore the contents of the old Will should be reviewed and discussed. 

With vast experience in Will drafting- we've simplified the process

Making your Will with Madden Law

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Print

Download the relevant form below. There are three forms below. Please contact us to post the relevant form to you if you wish.

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Form

Full out the form at home, as best you can. Drop it in or upload it to us. It will be reviewed in full with you at your consultation.

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Cost

A standard fee of €200 will apply for a standard Will. The exact cost of a complex Will will be confirmed when details are submitted. 

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Appointment

Book an appointment online for a convenient time to come in to review and sign the Will with Shona. Home and hospital appointments can be requested here. 

Probate Solicitor Drogheda

Signing the Will

You can attend on your own. The Executors do not need to come in. Our office will store the original Will and give you a copy. 

Watch the recent FB live on questions relating to making a Will

With ten years legal experience, we can answer all your questions about making a Will.
Q & A with Solicitor about making a Will

Posted by MaddenLaw on Friday, January 18, 2019
Family law Drogheda

Form for a person with minor children

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Form for an adult with no children

Probate Solicitor Drogheda

Form for a person with adult children

Case Study- Married couple with children under the age of 18 making a Will

Commonly married couple who own a property, hold the property jointly. This means that on the death of one spouse, the ownership of the property immediately passes to the surviving spouse. The death certificate is submitted to the Property Registration, who will remove the deceased person from the ownership of the property. All assets that are held jointly fall outside the scope of will. A will cannot have effect over joint assets, as the title transfers on death to the surviving joint holder of the assets. This typically applies to property and bank accounts, held by couples.

Therefore, the main concern of couples making a will is usually to ensure that a mechanism is  in place should both parents die while any of the children are under 18.  A will usually has two parts. The first part appoints each spouse as the Executor of each other and gives everything to that spouse. Although frequently, all the assets will transfer automatically on death. This means that there would be no requirement for a Grant of Probate to administer the estate of the first spouse. 

The Will usually has a second part, saying that on the death of the second spouse the estate is given to the children in equal shares. There is no legal obligation on  parents to leave everything equally to children. However, this is very common in this situation . 

When the couple have young children, this second part will say that if any of the children are under the age of 18, then  on the death of the second spouse then the share of the minor child is held on trust, until the age of 18 . Two Trustees must be appointed where there is a property in the estate. The assets are held by the Trustees on behalf of the minor child for the length of the trust.  At least one Executor will also need to be appointed in the Will. The role of the Executor is to administer the Will. This will involve taking out a Grant of Probate and transferring assets into the name of the Trustees. Guardians can also be appointed in the Will, to have custody of the minor children in this situation. 

The Trust is set up in the Will itself. There is no separate  Trust document. The Trust will come into effect if the circumstances arise, that is both parents die and a child is under the age of 18. The age at which the Trust ends can be increased in the Will . It is important to consider the tax implications that may arise if the Trust age goes beyond 21 years as Discretionary Tax Tax may arise. 

 

If you wish to make this kind of will please download this form . Each person makes a separate Will . The cost of each standard Trust Will is €200.

 

 

Trust Wills

How many Trustees need to be appointed?

There are no requirements, generally, about the  number of trustees that have  be appointed in a trust document. The exception is when  there is property in the trust, then two trustees must be appointed. 

Can a Trustee be paid?

The general rule is that a trustee  is only entitled to expenses. However, a will can make specific provisions for making payment to a trustee. 

Retirement of Trustees

Once a trustee has accepted the office, he cannot disclaim, only retire. The trustee can retire according to the terms of trust, if there are remaining trustees, or a new trustees are substituted or if the beneficiaries consent. (all being over 18 of sound mind and absolutely entitled)

 

Does a Trustee Have to Act?

No.  A trustee can refuse to act, if the person who made the Will believed he would act. This is called disclaiming. Disclaimer of a trust does not need to be in writing as it can  inferred from the fact that he never acted in the trust. Once the trustee has accepted however,  he cannot disclaim or vice versa. 

Acceptance 

Generally  when a  trustee takes some action in relation to the trust, his acceptance of the position is presumed. The trustee does not have to  give written acceptance of his position

In a will trust, when the same  person is appointed executor and trustee and who accepts the executorship will automatically be presumed to have accepted the trusteeship. He cannot accept one and then disclaim the other.

Removal

Trustees can be removed from office by the courts or if all beneficiaries consent. . The first place to check is the actual trust instrument to see what it has provided for. The courts can also replace a trustee is he is proved incompetent and/or dishonest, or is unfit or incapable of acting of if he is convicted of an offence or made bankrupt. The overriding concern is the welfare of the beneficiaries.

Will form

If you have children under 18 and need to prepare a Trust Will- download this form

probate Solicitor Drogheda

Case Study- Married couple with children over the age of 18 making a Will, who were not previously married. 

Commonly a couple who own a property,  hold the property jointly. This means that on the death of one spouse, the ownership of the property immediately passes to the surviving spouse. The death certificate is submitted to the Property Registration, who will remove the deceased person from the ownership of the property. All assets that are held jointly fall outside the scope of will. A will cannot have effect over joint assets, as the title transfers on death to the surviving joint holder of the assets. This typically applies to property and bank accounts, held by couples.

If a property is registered in the sole name of one person, it might be worth considering transferring the property into joint names. 

 At least one Executor must be appointed in the Will. Usually, each spouse will appoint each other as the Executor of each other and gives everything to that spouse. Although frequently, all the assets will transfer automatically on death. This means that there would be no requirement for a Grant of Probate to administer the estate of the first spouse. 

The Will usually continues, saying that on the death of the second spouse the estate is given to the children in equal shares. There is no legal obligation on  parents to leave everything equally to children. However, this is very common. There is no obligation on parents to leave an inheritance to children. The legislation requires parents to make “proper provisions” for their children, given a number of factors. This obligation can be satisfied by gifts given during the lifetime of the parents among other things. Each case is taken on its facts and there is no formula for determining when or if proper provision s made. 

Commonly the Will does not list assets of the estate. It gives the estate to the children in equals share or other shares. This give the Will flexibility as assets change frequently. If a Will stated that a Bank of Ireland account was going to one child and  a house to another and then the house was sold and the proceeds of sale lodged to the Bank or Ireland account, after the Will was made, this would result in  different bequests than the person intend. Therefore it is often advisable to value assets and give shares of the estate to the beneficiaries. The estate is defined as all of the assets of the estate at date of death. This includes assets that are due to the estate. 

The Will should deal with the situation that a child may predecease the person making the Will. The normal rule is that if a person named in a Will dies before the person who made the Will, then the gift to them lapses. The beneficiary does not inherit the gift. This can be changed by  a gift over clause in the Will .

It will also not apply if  person was a child of the person who made the Will. If a child dies before their parents and leaves a child, alive at the date of the death of the person who made a Will, then the gift given to the predeceased child does not lapse. But it does not go to the grandchild. It  goes by law to the estate of the deceased child. If that predeceased child made a will, it will go under the terms of that Will and if not, then by Intestacy. If there is a gift over clause in the Will of the person, it will be directed to go the grandchild or a another person they wish. 

If you wish to make this kind of will please download this form . Each person makes a separate Will . The cost of each standard Will is €200.

 

 

Case Study- Married couple with grown children , who were previously married. 

Similar to the situations above . However often when people bring their own grown up children to a new marriage later in life, the couple agree that they do not want to inherit from their new spouse’s estate. They decide to leave their estate between their own children only. They do not make provision for their new spouse or their spouses’s children. The law automatically vests one third of a married person’s estate, in the surviving’s spouse.

Even if a Will gives 100% to their children, 33% still vests by law in the spouse. This is called the Legal Right Share.  In these situations, the spouse who is not taking the one third share, should sign a Deed of Renunciation of their entitlement to the Legal Right Share. This document must be signed in the presence of an independent solicitor. It is advisable to do this at the time the Will is made. It can be done by the surviving spouse after the death of the spouse, however.

If you wish to make this kind of will please download this form . Each person makes a separate Will . The cost of each standard Will starts from €200. Independent legal advice costs €123.

 

 

Case Study- Cohabiting couple with grown children 

Unlike spouses, cohabiting couples have no Legal Right Share.  There is no entitlement to a one third share of their partner’s estate. There is a right to claim relief from the estate of the deceased partner. There are few reported judgments on this legislation. Each case will depend on its own facts when it comes to deciding if any payment or property should be given  from the estate of a cohabitant to their surviving partner. It will be important to consider the tax consequences as inheritances between cohabitants have a tax free threshold of €16,250.

A cohabiting person with children  will have an obligation to make “proper provision” for their children. The legislation refers to children, with no age limit. Often the property in which the couple reside is owned by one person. If this person has children, then often  the other non owning partner is given a Right of Residence for their life in the property, in the Will of their partner. This is often an exclusive Right of Residence in the property, if the children of their partner are grown up and live else where. The Will then does on to give the property to the children absolutely, after the death of the surviving partner.  This ensures the surviving partner has security in the property for their life .  

If you wish to make this kind of will please download this form . Each person makes a separate Will . The cost of each standard Will starts from €200. 

 

 

Case Study- Cohabiting couple with small children 

It is advisable to for the mother to appoint the father as the guardian of the children in the event the the mother predeceases the father. The father may qualify as being the guardian but it is advisable to formally appoint him as guardian in the Will. 

It will be important to consider the tax consequences as inheritances between cohabitants have a tax free threshold of €16,250.

 

If you wish to make this kind of will please download this form . Each person makes a separate Will . The cost of each standard Will starts from €200. 

 

 

Case Study- Single person with no children

With no spouse and no children, there are no legal obligations to provide for anyone in your Will. Provided the Will is valid, a single person can leave their assets to any person they decide. 

If you wish to make this kind of will please download this form . Each person makes a separate Will . The cost of each standard Will starts from €200. 

 

 

Case Study- A child with special needs

When making a Will,  many clients who have a child with a physical or mental disability are concerned with putting the right structure in place. This usually involves setting up a Discretionary Trust.  A Discretionary Trust gives Trustees absolute discretion about when, how and to which children of the Trust they may appoint capital or income of the Trust. The Discretionary Trust does not tie the hands of the Trustees and gives them the power to make decisions as they deem appropriate about when and how much money is appointed out of the Trust.

This is important because many of the supports and allowances available are means tested e.g. disability allowance  and medical card  . Therefore the Trustee can ensure that the thresholds for qualifying for these resources are not breached. A charity which supports the child may also be named as  beneficiary of the Trust. This allows payments to be made from the Trust to the charity, which may help reduce a possible Capital Acquisition Tax liability of the child.

Many people shy away from using Discretionary Trusts because of the potential liability to Discretionary Trust Tax. Currently there is an initial 6% charge and an annual 1% levy thereafter. A rebate of 50% of the initial 6% levy is available if all the trust funds are distributed within five years of the applicable valuation date. However there is a full exemption available for Trusts set up in these circumstances under S 17 of the CATCA 2003, when certain conditions are fulfilled. 

Make a Will with Madden Law

Form when you have children under 18

Wheelchair accessible office

There is plenty of free parking to the front, side and rear of the building. Enter the building through the door at the back, which is signposted The Skin Clinic. The lift is immediately inside the door. Take the lift to the third floor. Then follow the corridor and our office is on the right hand side. CLICK IMAGE FOR LARGER VIEW

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