Wills Estates & Probate WILLS What is a Will? A Will is a legal document that names the people you want to receive the property and possessions you own at the date of your death. These people are known as your beneficiaries.

Your property and possessions include everything you own; your home, land, car, money in Bank accounts, insurance policies, shares, jewellery, pictures, furniture, and so on. Making a Will is the only way you can ensure your assets will be distributed in the way you want after you die.

Should I make a Will?

Yes. It is essential to make a Will if you are concerned about who will receive your assets and belongings after you die. It is particularly important to make a Will if you have a family or other dependants.

In the event that you don’t have a Will then your assets will be distributed in accordance with a rigid statutory formula which may not be the way you would have wanted.

It is not true that the Government takes a deceased person’s property if there is no Will. This can only happen in exceptional cases where there are no close relatives or persons in a family relationship surviving the deceased.

Can I make a Will myself?

You can make a Will yourself if you wish.

There is no requirement that a Solicitor draft a Will. However, it is not in your best interests to draft your Will yourself. There have been many cases where homemade Wills were either unclear, not properly drawn up or caused unwanted tax liability. Many of these cases end up in Court and carry on for years, causing distress and perhaps hardship to the family of the deceased.

Since a Will is one of the most important legal documents you will ever make, it is false economy to try to do it without skilled professional advice.

How can I make sure my wishes are carried out?

You should appoint in your Will a person called an Executor to handle your affairs after you die.

If you wish, you can name more than one person to act as Executor. You can choose anyone to be your Executor – your spouse, relative, a friend, your Solicitor – but you should first ask them if they are prepared to take on the task and confirm with them that they have been appointed.

Being an Executor is a very responsible position. The executor has to obtain probate of the Will and pay any taxes, debts or expenses before finally distributing the balance to the beneficiaries named in your Will.

Can I alter my Will if I change my mind?

Yes. You are free to alter your Will at any time. If your circumstances change in any way, you can and should alter you Will. However, you cannot simply make an alteration by, for instance, crossing something out on the original Will and writing in your new wishes.

If the alterations are minor, you can make a codicil (this is a separate document in which you change a provision in your Will) but it is usually better to make an entirely new Will unless the change is a very simple one. A codicil must be signed in the presence of two witnesses, in the same way as when you make your Will.

What if I marry or divorce?

If you made a Will before you married, it will automatically be revoked when you marry, unless it is stated to be made with a particular marriage in mind, or stated in general terms that it was made in contemplation of marriage. So if you marry, it is more than likely you will need to make a new Will.

Any gift or appointment (e.g. as an Executor or Guardian) in favour of a former spouse in your Will is automatically revoked when a divorce decree becomes absolute or a decree of nullity is made. It is in your best interest to make a new Will or codicil if you are divorced or have been separated for an extended period.

Can I leave my assets to anyone?

Yes, but you should make proper provision for your spouse and children, including ex-nuptial children. If you don’t, they could take proceedings to obtain provision depending on their needs.

Where should I keep my Will?

Keep your Will in a safe place. We can keep your Will in safe custody free of charge.

ESTATES & PROBATE

What are an Executor’s responsibilities?

Usually the executor obtains the assistance of a Solicitor in order to obtain Probate and administer an Estate.

We can assist with this often difficult and complex process.

In general terms, an executor’s duty is to take charge of the deceased’s assets and property, see that the funeral and administration expenses as well as debts and taxes are paid and finally to distribute the assets to the beneficiaries in accordance with the Will.

The executor should begin by finding out and making a list of everything the deceased owned or was entitled to. The list could include a home, car, money, a bank or building society accounts, furniture, household appliances, jewellery, shares and other investments, insurance policies, superannuation, and holiday pay from work. In addition, if the estate is to be divided between a number of beneficiaries, the assets may have to be valued.

Next, an application is made to the Probate Registry of the Supreme Court for a grant of Probate. Probate is an order of the Court saying that the Will is valid and that the executor has the right to administer the estate.

Is it always necessary to obtain Probate?

No. If the assets of the estate are quite low in value it may not be necessary to obtain Probate.

Banks and Building Societies have varying rules which allow access to the deceased’s funds without a grant of Probate.

We can advise you in respect of your particular circumstances.

What do I do after Probate is granted?

Once Probate has been granted, it is necessary to collect the deceased’s assets and take steps to pay the funeral and administration expenses and any debts or taxes including income tax – the deceased owed.

Funeral expenses are to be paid first and there is a particular order in which any other debts must be paid. After funeral expenses are paid, the executor is entitled to payment of any actual expenses incurred relating to the administration of the estate before other debts are paid.

Once debts have been paid, assets are either distributed according to the terms in the Will or they are sold so that money can be divided among the beneficiaries.

It is necessary to contact financial organizations and companies in which the deceased had money invested in order to realise those assets, and it might be necessary to sell various pieces of the deceased’s belongings such as jewellery, a boat or car.

All funds belonging to an Estate are often placed in a Solicitor’s Trust Account and debts are then paid.

When and how are the assets distributed?

When all assets have been identified and, if necessary, sold to raise cash, and all debts have been paid, the remainder of the estate can be distributed to the beneficiaries after publication of a notice requiring anybody with a claim against the estate to provide particulars of the claim within a specified period – not less than one month.

A distribution report and statement for the beneficiaries is provided – given to them when they receive their share of the estate – showing what the assets were, how much money resulted from any sale of assets and what expenses and debts were paid from the proceeds.

What if there is no Will?

If there is no Will there will be no executor.

A relative entitled to the whole or part of the estate of the deceased can make an application to the Probate Registry of the Supreme Court for letters of administration; once granted, these provide for a personal representative of the deceased who can then proceed in much the same way as an executor.

There are rules laid down by law about how assets are to be distributed when there is no Will. Briefly, a surviving spouse receives the whole estate if there are no children, or all “household” belongings plus the first $150,000.00 of the estate and half the remainder if there are children. The children divide the other half of the remainder. The spouse may elect to take the matrimonial home as his or her share.

If there is no legal or de facto spouse or direct descendants, the deceased’s parents receive the whole estate, otherwise it goes to brothers and sisters or other close blood relatives. If none of these relatives are alive, the estate goes to the Government.

Woodgate Lawyers can help you with:

• Advice as to your rights and responsibilities as an Executor.
• Prepare and help complete the Application and Affidavits need for Probate.
• Assist you to identify and collect the deceased’s assets.
• Advise you about the legal order in which debts must be paid and assets distributed.
• Explain the legal order of distribution of the Estate in a case where there is no Will.
• Draw up a Statement of Assets for realisation and distribution to the beneficiaries.

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The information you obtain at this site is not, nor is it intended to be, legal advice.
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