Making a Will - what you should know

1. Making a Will - what you should know Sarah Lennon Inclusion Ireland

2. Presentation Overview • Introductions • Why should I make a will? • Components of a valid will • Different considerations • Assisted Decision Making Bill • Questions

3. Introductions The Vision of Inclusion Ireland is that of people with an intellectual disability living and participating in the community with equal rights as citizens, to live the life of their choice to their fullest potential.

4. Why Make a will • If you don't then you have died ‘intestate’ and strict rules apply • You have no say in how your estate is divided • Verbal assurances may not have effect • Any wills you make doesn’t have to be final– can be changed or altered

5. Intestacy

6. Do I need a solicitor? • Not technically needed • It is usual to hire a solicitor, especially if creating trusts • Legal accuracy is important especially with trusts • Invalid wills means that the rules of intestacy kick back in

7. A Valid Will • Must be in Writing and signed • Must be witnessed (signature) • You must be over 18 or have been married • You must be of sound mind & free will • 2 executors

8. A Valid Will • Must include your name and address, • a statement revoking earlier wills included • Statement naming executors • A residuary clause (e.g. "The remainder of my estate I leave to my son, Jack".

9. Witnesses • 2 required • Must sign after you have signed • May not receive a gift • Their spouse may not receive a gift

10. Executor • A person named in the will who has the job of carrying out the terms of the will • Can benefit from will (unless they or their spouses are witnesses) • Over 18 • Sound Mind

11. Do I have to leave my property to my children equally? • No • Any child who feels they were not treated fairly can bring a court application • Must show proper provision wasn't made • Provision can include money given during life time

12. Challenging a will • Generally 3 areas • Lack of Capacity (Sound Mind) • Undue Influence (Pressure) • Failure to provide for certain family members • Application must be made to court

13. Sound Mind • Have legal capacity • Understand that you are making a will • Only mental state of person at time they made will – not at a later stage • Ward of Court cannot make a will

14. Undue Influence • Where the relationship between two people allows advantage to be taken of a person • A decision is taken on foot of that pressure • Types of relationship – parent, spouse, solicitor, doctor etc.

15. Providing for Family Members • ‘Moral Duty’ – cannot disinherit children or spouse / civil partner • 6 months limit on challenges • Consider the will and any previous gifts • Children inside and outside marriage • Co-habitees have no legal right but a ‘qualified cohabiter’ may apply to the court

16. Capital Acquisition Tax • Gifts are tax free up to a certain amount depending on the relationship • After 6 December 2012 - Threshold amount Nil & Balance 33% • Spouse & Civil Partner are exempt • Group A – Children - €225,000 • Group B – Parents (can be group A), Grandparents, Grandchildren, Siblings, Nieces & Nephews - €30,150 • Group C – All other relatives €15,075

17. Disability Allowance • Means test looks at all your capital, for example, the value of savings, investments, shares, any property you may have (other than your own home). • The first €50,000 of any capital you have is not taken into account.

18. Disability Allowance

19. Discretionary Trust • ‘discretionary’ • May be useful for a person who is receiving a social welfare payment • Indirect provision • Other uses and assurances

20. Discretionary Trust • Has Tax benefits • Helps preserve state benefits • Person only has a life-interest in trust fund • Important that payments are periodic – regular payments seen as maintenance / income

21. Trust Funds • Can be done while living or through a will • Letter of wishes can accompany the trust document • Not binding • Clear guidelines or priorities for trustees

22. Trustees • ‘Trust’ • Significant responsibility • Trustees have secondary liability for tax • Consider who and how many • Discuss role

23. Trust Tax • Discretionary trust tax (6% initial, 1% annual) • Trustees must notify the revenue commissioners & self-assess • Exemptions • Children (until they turn 21) • Incapacitated persons • Public/charitable

24. Trustees • Who should be a trustee? • “Trust” • Age Profile • Consider 3 • Professional or Family • Discuss

25. Guardianship • Where a child – under 18 - testamentary guardian • Where an adult – over 18 – guardiansip not possible • Ward of Court is only adult Guardianship

26. Ward of Court • 1871 – outdated • Restrictive, travel etc. • Anyone can apply, solicitors, family members, doctors, HSE • Committee is appointed for personal or financial decisions

27. Assisted Decision Making Bill • No longer Ward of Court • Office of the Public Guardian • Various Structures • Assisted Decision Making • Co-Decision Makers • Personal Representative

28. How will Decisions be Made? • by the person autonomously • By the person with assistance • Informally by another person • By the person with a co-decision maker • By another person (representative or attorney) Outside of the Court System Through the Court System

29. Wards of Court • Everyone who was a ward before the Act will be reviewed within 3 years but can apply to court for review as soon as the Act is passed • Everyone who was a ward will be discharged eventually, and a different order will be made (e.g. co decision-making or representative) but the court will decide when this will happen and will base this on the person’s capacity

30. Summary • Dying without a will – Intestacy • With a will – there are certain restrictions • Trust Funds & Trustees • Assisted Decision Making Bill

31. Thank You • Q&A