Making a Will is Simple

Senior Times

Damien McHugh explains:

When a person dies, assets such as bank or building society accounts, a house, shares or insurance policies may be left. Before these assets can be distributed, it will usually be necessary to apply for a document known as a grant of representation.

Making a will is extremely important for all of us, no matter what our age. Why? Because it allows the person making the will to leave property and other assets, if any, to the person or persons they want to have it. If they don’t make a will, the property and assets will be divided in accordance with the Succession Act which might not be what they would want. It could even result in the estate or part of it being left to the State.

Making a Will

The importance of making a will was brought home to me some years ago by the circumstances of a High Court application which, like most cases of this type, was held in camera. But I was peripherally involved at the hearing.

It concerned the custody and guardianship of the only child of a married couple who were killed simultaneously in a road accident. Each of the two sets of grandparents of the child wanted guardianship of the child and applied to the court. The judge listened to evidence from both sides and had to make a difficult decision as to which grandparents should win out.

It was a sad case from everybody’s perspective but if the couple had made a will stipulating who should take care of the child in the event of their prior death, it would have saved a lot of grief for the people involved. It also brings home the point that we should not wait for advanced age to make a will.

Even if a will has been made earlier in one’s life, it’s important to update it because people’s circumstances can change: e.g. divorce. Divorce does NOT revoke an earlier will but, obviously, a new will should be made. This can be done by destroying the earlier will or making what’s known as a codicil to the existing will.

The best advice is to make an entirely new will. It should be made clear that a subsequent marriage will revoke a will unless, of course, a will was made in contemplation of marriage, something that is becoming very much in vogue, not only in Hollywood but also in this country.

What goes into making a valid will? Many people go into Easons and other good stationers and purchase a ready-made format for a will at a cost of less than €1.50 and they proceed to follow the instructions and execute a will which usually is a valid will. However, these homemade wills very often give rise to problems when it comes to admitting the will to probate in the Probate Office if they are not executed and drafted properly. Simply put, a valid will should contain the name and address of the person making the will, the testator, if it’s a man, or the testatrix, if it’s a woman. It must also contain the following:

  • A clause revoking earlier wills and codicils.
  • The appointment of an executors, giving their addresses.
  • The part giving legacies
  • A clause stating what should happen the residue or remainder of the estate
  • The date the will was executed
  • The testator’s signature and lastly,
  • The signature of the two witnesses with their names, address and occupation.

Grants of Probate and Letters of Administration can be obtained in two ways: by instructing a solicitor or by a personal application to the Probate Office which is situated in Phoenix House in Smithfield, Dublin or to one of the 14 District Probate Registries throughout the country.

It’s not always possible or advisable to proceed by personal application as the estate may be a large and complex one to administer. Very definitely, a solicitor should be engaged in these circumstances.

However, it’s not generally known that it is possible to have the deceased’s estate administered by an executor, where the deceased has made a will, or by an administrator, where a will was not made. Having said that, there were about 1,100 such applications made to the Probate Office in the last year which has two officials working full-time on these personal applications.

There are a number of very good reasons why a person should proceed to obtain a grant of representation by going down the route of making a personal application:

The fees payable would be relatively inexpensive e.g. a net estate of just over one million Euro would attract a fee of €968 , based on current fees which, I understand, will be increased in the near future.

A net estate of €500,000 would attract fees of €512. (Probate fees payable to a solicitor can be substantial, depending on the size of the estate and the complexity of administering it).

It can be quick and simply done with personal guidance by the helpful officials in the Probate Office or local District Probate Registry.

A Personal Application is commenced by completing an application form. This can be obtained on the court’s website www.courts.ie or by calling to, writing or telephoning the Probate Personal Application Section, The Probate Office, Phoenix House, 15-24 Phoenix Street, Smithfield, Dublin 7.

When the form is fully completed, it should be returned to the Office whereupon an appointment is made for the person to attend. (6/7 week delay at the moment for an appointment). At the appointment, the applicant must bring full details of the estate, including a death certificate, the original will, if there is a will, statements giving details at the date of death of bank, building society, post office or savings accounts of any kind, either in the sole name of the deceased or jointly held by the deceased with another person.

Details of insurance policies, gratuities and superannuation schemes are also required by the office. If there is a house, property or land of any nature held by the deceased, the title deeds or land certificate or copies of them must be produced in addition to details of any other assets such as prize bonds, stock, shares and cash. Details of the deceased’s debts should also be submitted, including funeral expenses, headstone and catering expenses, if any, outstanding mortgage, loans and any other debts.

People can also make personal applications at one of the local District Registries where the deceased at his time of death had a fixed place of abode within the particular area or jurisdiction of that local office. These are in Cork, Galway, Kilkenny, Limerick and Waterford cities and the county towns of Castlebar, Cavan, Clonmel, Dundalk, Letterkenny, Mullingar, Sligo, Tralee and Wexford. These offices are attached to the local Circuit Court Office.

It’s not always necessary to apply for a grant of representation. The exceptions would be:

  • Where a person dies leaving no assets.
  • If there are small amounts of money in a bank account or building society account (less than about €5,000 usually). Depending on the circumstances and the relationship, they may release the money directly. If there is joint property, such as a house, this passes to the survivor automatically. However, a grant is necessary to sell or transfer property held solely in the name of the deceased person.
  • When a person dies without making a will, the estate is dealt with by an administrator, not an executor. The document that will be sought from the Probate Office or District Probate Registry is called a grant of letters of administration.

Damian McHugh BL is author of Going to Court: A Consumer’s Guide which was published in November, 2002 by First Law. It retails at €12.

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