Legal Matters – What happens to my property after I die?

by Síne Enright

Q. What happens to my property after I die?

A. Whether or not you have made a Will will determine what will happen to your property (being your money, real estate, personal belongings etc.) after you die. If you make a Will, your estate will be administered in accordance with the terms of your Will. If you don’t make a Will, the law, being the Succession Act of 1965, determines to whom and in what shares your property is distributed.

If you die leaving a spouse without children, your spouse takes everything you lawfully own.

If you die leaving a spouse and children, the spouse takes two-thirds of your property and your children take the remaining one-third between them.

If you die a widow/widower, with children, your children share equally in your estate.

If you die without spouse or children, your next of kin share in your estate. Precisely who your next-of-kin are will be determined by the circumstances prevailing at the date of your death. If your parents are alive, then your parents will share in your estate. If your parents have pre-deceased you then your estate will be divided amongst your siblings and, if you do not have siblings alive at the date of your death, your estate will fall to be divided amongst your nieces and nephews, if any, and so forth.

Many people may be surprised to know that, if a child dies before you, leaving a child of their own, their share of your estate will go to their estate, and not necessarily to their own children. It is only by making a Will that you can prevent this from happening.

Couples who live together but are unmarried (referred to as “co-habitants” or “qualified cohabitants”, depending on the amount of time the couple has spent living together) do not have the same rights as spouses do. Qualified Cohabitants can apply to court under what is known as the redress scheme but they do not have an automatic legal entitlement to a share in their partner’s estate.

In simple terms, a Will sets out a person’s particular wishes for what will happen to their property after they die. It is important to remember that wishes set out in your Will do not take effect until you die and until that time, you may do as you please with your property.

There are a number of practical benefits of making a Will, including the following:-

  1. You get to decide to whom and in what shares you would like to distribute your money and property.
  2. You may have control over who gets items of personal property such as your engagement ring or a painting. This is useful where the Testator (the person making the Will) does not wish to part with the personal item during their lifetime and can also help to avoid conflict during the administration of the estate.
  3. You choose the Executor, who is the person in charge of administering your estate and can be any person you wish, but should be someone you know and trust.
  4. You can distribute your estate in a tax efficient way, by minimising the amount of Capital Acquisitions Tax payable by the beneficiaries.
  5. You can change your Will as often as you wish, and it is only your most recent Will that counts.
  6. When a person dies “testate” i.e. having made a Will, the administration of their estate typically, though not always, runs more quickly and smoothly.
  7. If you have young children, you get to direct who will step into your shoes if both parents have died (“the guardians”) and who will look after their financial maintenance (“the trustees”).

The freedom of the Testator is somewhat restricted by the law however. Spouses are afforded significant protection under the law and have a right to a share in the estate of their deceased spouse. This is known as the Legal Right Share. There are various ways and means of dealing with this situation but the bottom line is that your spouse most certainly has a right to a share of your estate even where you make a Will. In fact, the executor has a legal duty to inform the spouse of this right and the spouse can then choose whether to elect to take their share or not. The surviving spouse may elect to take the family home in satisfaction of their legal right share (there is a limited exception to this). Civil Partners are also entitled to a Legal Right Share of 1/3rd of your estate where you make a Will however this is subject to any possible claim by a child of the Testator.

Your children do not have an automatic entitlement to be left anything under your Will however, there is provision in the law for a “child” to make a claim against your estate if they believe that you have failed in your moral duty to make proper provision for them in accordance with your means. “Child” means children of marriage, non-marital children and legally adopted children and there is no age limitation on this provision.

The one overriding exception to all of the above is where property is held under, what is called, a “joint tenancy”. Property owned between spouses is usually held under a joint tenancy so that when one spouse dies, the property automatically goes to the other spouse.

If you own a property with another person it is important to check with your solicitor how exactly it is legally held between you.

If a joint bank account is opened for convenience, it is important to state in writing whether you intend for the survivor to keep the money or whether it should go into your Estate to be dealt with in accordance with the law or in accordance with your Will.

Finally, it is important to note that there is potential for a number of different taxes to arise during the administration of an estate after a person dies and it is therefore important to consider the tax implications of the bequests under your Will, before you make your Will, so as to ensure that your estate may be distributed in a tax efficient way. There are various tax reliefs available such as Agricultural Relief, Business Relief, favourite Niece/Nephew Relief, Dwelling Exemption, Charitable Bequest Relief and so forth which should be explored prior to making your Will.

Disclaimer – The information set out in this article does not constitute or contain legal advice. The author cannot guarantee that all information will be applicable to your situation or that it is, from time to time, accurate or complete. Both the author and the West Cork Times Ltd. disclaim any liability in connection with any actions taken or not taken based on the content of this article.

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