Making a will is an important legal privilege which all clients should exercise, since it enables you to control how your assets are distributed on death, including how you provide for family, friends and others. Wills are relevant for all clients, irrespective of age or wealth and should be kept under review as you get older, if your life circumstances change or where assets are transferred. This is particularly the case if your spouse/partner dies or if you marry, separate or divorce. Irrespective of how large or small your estate, every person has the right to make a will which they should exercise.

A will is a very personal document and every will we make is tailored to the specific requirements of each client. We give time to discuss your wishes and when drafting wills, we take great care to ensure that they provide legal certainty for families and that there is no risk of subsequent legal challenge. We explain the implications of all legal technicalities such as gift over clauses, residuary beneficiaries, the Legal Right Share, advancements and what happens if a particular asset is sold before you die.

As specialist probate solicitors, we offer a complete range of wills to cater for all clients. This includes wills for minor children (where parents wish to nominate guardians and trustees), wills containing ‘gift over’ clauses (where provision is made if the named beneficiary does not survive), joint wills and also more complex trust or tax planned wills. We can also structure wills to take advantage of CAT Thresholds, Business Relief and Agricultural Relief (even for non-farming clients) which will significantly reduce inheritance tax. 

If you choose not to make a will, or your will is invalid, a set of default legal rules known as intestacy will apply to distribute your estate. The rules of intestacy are set out in the Succession Act and dictate, not just  the manner in which your estate is distributed, but also the nomination of your personal representative (administrator), who may be unsuitable and not the person of your choice.

The rules of intestacy are inflexible and generally result in unintended outcomes that do not reflect your wishes or indeed meet the needs of your family. An intestacy may also give rise to inheritance tax that might otherwise have been avoided if a will was in place. Given the small cost in making a will and the consequences for your family in not doing so, we strongly urge you to exercise this legal privilege. 

Tax planning for individuals and their families forms a central part of our work which is to the fore of our wills and probate practice. Our solicitors have the expertise to deal with complex tax cases and advise on all capital taxes including stamp duty, capital gains tax, gift and inheritance tax. We work closely with clients to identify tax saving opportunities on every gift, sale or purchase of property where it is often possible to reduce or eliminate tax with strategic planning. 

When it comes to succession planning and wills, we explore the most tax efficient manner of passing on family assets. Our solicitors have a wealth of tax knowledge and will consider all Capital Acquisition Tax (CAT) reliefs, including Dwellinghouse Relief and Agricultural Relief.  We will maximise available CAT thresholds within your family and exploit the annual Small Gift Exemption, which  can result in significant CAT savings. 

We offer clients a full tax service which includes filing CAT and CGT returns and discharging any liability on their behalf to Revenue.

Administration is the process of collecting and distributing the assets of a deceased person in accordance with the strict rules of succession. This is the final chapter of a person’s life and requires a full review of the deceased’s assets, taxes and financial affairs. 

Our probate solicitors handle all aspects of the administration whether the deceased has died with, or without a will. We advise the personal representatives throughout and ensure that they comply with their duties under the Succession Act and serve all appropriate statutory notices in time. It is important that personal representatives are properly protected since they are personally liable on estates. 

As probate solicitors, our work involves identifying who has the right to extract the grant, drafting the application for the Grant of Probate (will) or Administration (no will) and dealing with the Probate Office. We advise to whom, in what priority and in what shares the estate should be distributed. Our role also entails liaising with financial institutions, pension companies, insurance brokers, accountants, undertakers, debtors, Revenue and the Department of Social Protection. Following distribution, we prepare and file inheritance tax returns on behalf of beneficiaries. This is an important step since personal representatives can be personally liable for CAT in some instances.

Trusts have many different uses and may be established in lifetime, or more commonly by will. In their simplest form, trusts are a device whereby the owner (settlor) places assets (trust fund) in the name of another (trustee) for the benefit of a named party (beneficiary) for specified purposes (objects).

While trusts are useful tools in tax planning, their purpose goes beyond this. They are particularly relevant for parents of minor children to deal with a joint death situation. Trusts also cater for a person with special needs and, for adults who cannot independently manage their own affairs. At Anthony Carroll we offer clients a complete range of trusts to cater for different circumstances:

• Discretionary Trust –  This is a trust  commonly created by will for parents of minor children to cater for a joint death situation and for the appointment of legal guardians of their children. These trusts are entirely flexible as to capital and income and are exempt from Discretionary Trust Tax (DTT) until the youngest child reaches twenty-one. Also, payments out of the trust fund for support, maintenance and education, as well as medical expenses, are generally CAT exempt. After the youngest child reaches twenty-one, there is an initial DTT charge and then an annual DTT charge on the undistributed trust fund. However, some of these charges will  be avoided if the trust  is  wound  up  in time. Letters of Wishes can be put in place by parents to informally direct the trustees on how they would like their estate dealt with after they are gone.
• Bare Trust – We sometimes set up a lifetime fixed trust to enable the transfer of assets into a trust fund for the absolute benefit of  a minor child. These trusts are a useful device to pass down assets to the next generation when values are low. For CAT purposes, the value of the trust fund is taxed at time of entry and any accumulation in value of those assets will not be subject to any CAT. Unlike Discretionary Trusts,  no Discretionary Tax arises on Bare Trusts if properly drafted. Assets can also be willed into that trust by the settlor and others on death.
• Trust for an Incapacitated, Special Needs or Improvident Child – In making wills for parents who have a child with special needs or an adult child who is improvident, we set up a stand-alone trust within their will naming that child as the beneficiary of specified assets. In this way, the trust does not incur DTT liability and qualifying payments will also be exempt from CAT. Improvidence includes adult children with addiction issues, where they are a spend-thrift or lack full capacity to manage their own affairs. Again, it is important to ring-fence these trusts within the will. Such wills provide comfort for parents who may have concerns for vulnerable children after their death.
• Trust for Sale – When making a will, we frequently use a trust for sale where property is willed between several beneficiaries and is likely to be sold. Once a grant of probate is issued, the trust for sale allows the executor to postpone selling the property for a specified time to maximize its value for the beneficiaries.

There are several grounds on which a will can be successfully contested. As specialist solicitors dealing with wills and probate, we regularly advise clients of their rights where, for example, they have been left out of a will, or inadequately provided for. Apart from the Succession Act, which provides a legislative basis for such claims, other claims are grounded on legal principles developed by the courts through case law. If a will is set aside, then the estate will be distributed in accordance with the previous will, and if none exists, by the rules of intestacy.

There are also circumstances where it may be necessary to extract an emergency grant This can arise where urgent action is required, either to protect the estate from trespass etc or to litigate a claim before it is statute barred. It should be noted that the limitation period in this situation is just two years from date of death. Our probate solicitors handle emergency applications on a regular basis and are well placed to have them expedited through the Probate Court.

The following  are the most common causes of action:

• Invalid Will – A will can be declared invalid on numerous grounds where it does not comply with the strict requirements of the Succession Act 1965. Such claims can arise where a testator does not possess testamentary capacity to make a valid will or where the technical requirements as to execution and witnessing are not complied with. The Act dictates how the will should be executed by the testator and how the two witnesses should evidence the making of the will. It also renders void any gift by the testator to a witness or to the spouse of a witness. So called “homemade wills” should be avoided since they have a very high failure rate and frequently result in expensive litigation.
• Undue Influence – If the testator was threatened or coerced into making a will, the courts are most likely to set that will aside on grounds of duress or undue influence. These claims are more likely to succeed where the testator is elderly or vulnerable and proper protocols and procedures have not been followed in making the will.
• Section 117 Claims – Children also have rights to contest a will by making a claim under Section 117 of the Succession Act. Such claims will succeed where it can be shown that a parent failed in their moral duty to make proper provision for a child in accordance with their means. Section 117 is not confined to minors and in recent years we have successfully handled several claims for adult children. In these cases, the claim must be filed within a strict limitation period and framed within specific criteria laid down by case law.
•  Proprietary Estoppel –  A common ground on which a will can be challenged is where a person has been promised property during the deceased’s lifetime which they have not received on death. Estoppel ensures that a person who acts to their detriment on the basis of a promise, is compensated where they are overlooked in a will. Such claims are governed by long established legal principles known as promissory and proprietary estoppel, are complex and require extensive preparation. Recent High Court  case law in this area is  helpful and  has enabled us to recover farms and houses for clients but estoppel equally applies to other assets.
• Cohabitation Claims – Unlike married couples, cohabitants have no automatic right of inheritance on the death of their partner. Instead, their position is governed by the Redress Scheme introduced under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. This allows a partner to make a claim on the estate of the other if the relationship breaks down, or on death. Such claims must be made to the Court by the cohabitant where they are required to show financial dependency on their deceased partner if they are to succeed. Before making a will, these matters should be fully considered.
• Legal Right Share – Surviving spouses have a legal entitlement to a portion of their spouse’s estate (referred to as the “legal right share”).This varies depending on whether there is a will or intestacy and, whether there are children. Where there is a bequest in a will, the spouse may elect to take either the bequest under the will or, instead claim their legal right share. Where a spouse is not notified by the personal representative of their legal right, legal proceedings may be required to assert such right against the estate. It should be remembered that separated spouses can still have inheritance rights on the death of their spouse, unless these rights have been expressly waived in writing. The legal right share can also be defeated if the estranged spouse is found to be in desertion for a period of two years prior to the death of the deceased spouse. Our wills and probate solicitors will advise you fully on these matters. 
• Emergency Grants – At times, it is necessary to apply for an emergency grant of representation where a full grant cannot be extracted in time. These are known as  grants of Administration Ad Litem and normally arise where urgent action is required to protect an estate – for example, if an injunction is needed to restrain trespass. In contrast, such grants can also be required to sue an estate if the full grant has not been taken out by the personal representatives. This frequently arises where a debt (owed by the deceased) risks becoming statute barred within two years of date of death unless proceedings have been served. In order to have authority to issue such proceedings, an emergency grant is firstly required. However, you can expect to recover your costs of taking out the Emergency Grant in these situations.