What is a will and why make one?

A will is a witnessed legal document, setting out in writing the deceased’s wishes for his/her possessions (their estate) after death. You can find a list of the legal requirements for a will on the Citizens Information Board’s website.

Whether you make a will or not will affect the legal status of what happens to your estate when you pass away.

It is important to make a will to:

• Make sure your wishes are carried out
• Make sure your spouse/partner and/or family are looked after
• Avoid delays in the distribution of your money and/or property to those entitled to it, or those to whom you have left gifts
• Make sure your funeral expenses are covered
• Avoid possible conflict

It is a good idea to keep an up-to-date list of your assets. You can use a form for this, such as the Citizens Information Board’s checklist outlining where your possessions and other important information are kept.

What happens if you die with a will?

If you die having made a valid will you are said to have died ‘testate’. If you die testate, your estate will be distributed according to the instructions in your will. It is the job of the executor(s) (the person or people named in your will to carry out your wishes) to make sure this happens.

After a person dies, somebody must deal with their estate – collecting their money and possessions, paying any debts owed, and distributing what is left to those entitled to it. To do this, one or more of the executors named in the will usually has to get legal permission from the Probate Office or the District Probate Registry in the area the person lived in at the time of their death. This executor will receive a document called a Grant of Representation, giving them permission to deal with the will.

If the deceased has not named any executors in their will, or if the executors are unwilling or unable to apply for the Grant of Representation, documents called Letters of Administration are issued by the Probate Office or District Probate Registry. After any debts are paid, the legal entitlements of the person’s spouse/civil partner and children (if any) are fulfilled first, before any gifts are considered.

In general you can leave your estate to anyone you choose. However, there are exemptions in relation to spouses/civil partners and children.

If your spouse/civil partner hasn’t renounced his/her rights and is not legally seen as being ‘unworthy to succeed’, then they have a right to a ‘legal right share’ of the deceased’s estate. Being judged as ‘unworthy to succeed’ is quite rare, and might only arise in cases where, for example, the surviving spouse/civil partner murdered or committed serious crimes against the deceased, or had deserted the deceased for at least two years before death.

• With a ‘legal right share’, if there are no children, the spouse/civil partner is entitled to one-half of the estate.
• If there are children, the spouse/civil partner is entitled to one-third of the estate. The children are not necessarily entitled to the rest.

It is important to note that, if the deceased was in a cohabiting relationship and dies without a will, their partner has no right to any share of the estate, apart from what was held jointly between them.

There is nothing to prevent someone from leaving some or all of their property to their cohabiting partner, as long as this is laid out in their will.

What happens if you die without a will?

If a person dies without a will, they are said to die intestate. If someone dies intestate, an administrator is appointed to distribute the estate. Their duties are generally the same as an executor’s. Next-of-kin may apply to be the administrator, or the deceased’s solicitor may be appointed. If there is a doubt about who is to be administrator, the issue will be decided by the Probate Registrar.

Usually, an administrator is required to give an administration bond to the Probate Office – a sort of guarantee that the administrator will carry out their duties properly. The administrator will apply to the relevant court for a letter of administration. This will give them authority to administer the person’s estate.

The administrator has to abide by the rules set out in the Succession Act, 1965 when distributing the estate.

What happens to a person’s money?

Bank/building society account(s)

If the bank account is in the joint names of the deceased and their spouse/civil partner, the money can usually be transferred into the surviving partner’s name.

If the account is just in the deceased’s name:

• Family members cannot get access until probate is taken out, that is, until the person’s estate is being distributed.
• However, if the amount in the account is relatively small, the bank may release it, provided the next-of-kin/personal representatives sign an indemnity form.
• An indemnity form is a guarantee that the bank will not be at a loss if there are other claims on the money.

If the bank account is in the joint names of the deceased and their spouse/civil partner, the money can usually be transferred into the surviving partner’s name.

If the account is just in the deceased’s name:

• Family members cannot get access until probate is taken out, that is until the person’s estate is being distributed.
• However, if the amount in the account is relatively small, the bank may release it, provided the next-of-kin/personal representatives sign an indemnity form.
• An indemnity form is a guarantee that the bank will not be at a loss if there are other claims on the money.

Credit Union accounts

Credit Union accounts are normally just held under one name, however some may allow joint accounts.

• If the deceased has completed a valid Nomination Form, nominating someone as next-of-kin, the proceeds of the account up to a maximum of €23,000 go to the person(s) nominated.
• The balance, if any, of the account forms part of the deceased’s estate and is distributed along with the rest of their estate.
• Some people’s estates or next-of-kin may be entitled to insurance benefits (e.g. free loan protection), and therefore their Credit Union loans will be paid off when they die.

What happens to a person’s debts?

• Any debts must be paid out of the estate before anything else.
• Where there is not enough money in the estate to pay all outstanding bills or debts, funeral and administration debts take priority, followed by debts that have security (such as mortgages) and finally unsecured debts (for example, personal loans).
• If you are experiencing financial difficulties after a bereavement, our debt action plan can help you prioritise your debts and outline what your next steps should be. You can also contact the Money and Budgeting Advice Service (MABS). MABS offers free, independent advice for dealing with problem debt.

What happens to household bills?

• If household bills are in a deceased person’s name, they can be transferred into the appropriate person’s name.
• If the bills are paid by standing order or direct debit, you may have to contact the person’s bank to arrange this.
• You may also need to cancel the deceased person’s debit and credit cards, as well as their health, car or home insurance.

For personal loans you are only liable for debts for which you have signed. If you are having difficulty making repayments on a loan, you should let the company know about your bereavement and ask for time to work out what you can afford, given your changed circumstances.
You are not legally obliged to take on payments on a loan in the deceased person’s sole name. This should be paid out of the person’s estate.

What happens to a person’s pension?

The rules on occupational and personal pensions vary with different pension arrangements.

If the deceased was a member of a pension scheme, you should contact the employer or scheme administrators to find out if there is a pension for the spouse/civil partner and/or children.

Self-employed people may have pension arrangements which involve some of the investments becoming part of the deceased’s estate.

People who are divorced or whose civil partnership has dissolved may be able to access some part of the pension scheme, depending on whether or not a pension adjustment order was made at the time of the divorce or dissolution.

Find out more information on pensions.

Taxation on inheritances

If you leave someone an inheritance, it is possible that capital acquisitions tax will be due.
Inheritance is taxed if it reaches a certain threshold. Different thresholds apply depending on the relationship between the person leaving the inheritance and the person receiving it.

There are also several exemptions and reliefs that vary depending on the type of inheritance.

You do not have to pay capital acquisitions tax if you inherit from your spouse or civil partner.

We acknowledge the use of information from the Citizens Information Board, for more information on death and bereavement, visit their website.