JEAN AND PAUL shared their love, finances and dreams for a future together. They had been living together for just over three years when Paul died in a tragic drowning accident caused by a leaking boat.
This did not stop Jean, our client, being completely ostracised by his family following his untimely death. Paul had not made a will and so she was left with no rights at all to his estate, causing her extreme emotional trauma and financial distress.
One particularly difficult day for Jean was when Paul’s car was taken from her. It now sits in the driveway of his parents’ home. For Jean, it was as if Paul himself was taken from her a second time.
Unfortunately, this is not an uncommon situation for those whose partners die without leaving a will.
If you pass away without making one, in legal jargon, you are said to have died intestate. The Irish rules on intestacy will dictate how your estate – your assets, money and possessions – will be allocated. This means it might not be distributed the way you or your partner would have wished.
If you die intestate and are married or registered in a civil partnership, the intestacy rules provide that your spouse or registered civil partner is entitled to your entire estate, if you have no children.
If you have children, they will get one third of your estate, while your spouse or registered civil partner will automatically get two-thirds. If your children are under 18, trustees will have to be appointed.
However, there are many young couples who will not have married or who will not have registered a civil partnership. If one partner dies, they will not automatically inherit from each other unless there is a will. As the remaining partner does not have any automatic right to inherit, this could cause difficulty and financial problems.
If you lived with your partner for at least five years, or two years if you had a child together, you are called qualifying co-habitants, and your partner would have to apply to court for provision to be made out of your net estate within six months of the date of the grant of representation taken out in your estate.
The court has discretion on whether or not to grant an order making provision for your partner.
In general, when you die your estate is frozen, unless it is in your joint names. You will need a grant of representation to access your partner’s bank accounts or to transfer property.
Under the intestacy rules, a person who has a right to take a share in the estate has the right to take out the grant of administration. However, what if your partner does not have a statutory right to a share?
Deciding the future
If you die having made a will, in legal jargon, you are said to have died testate. In your will, you name the executor who will administer your estate and extract the grant of representation to administer your estate. You decide how you want to distribute your estate, in other words.
If you have children, then it is even more important that each parent makes a will to protect them. This allows you to provide for a guardian to look after them until they reach 18 and specify how they should be cared for.
You can appoint the trustees you trust to look after your estate on behalf of the children until they reach 18. You can also provide for the special needs of a family member and ensure that the minimum tax will be paid on any benefit left to that child.
The only inevitability in life is that you will die at some stage. By making a will, you can at least provide some certainty for your family and ensure your estate is left in the right hands.
Aisling O’Leary is a partner at Cantillons Solicitors in Cork. The firm can be contacted for advice on 021 4275673 or info@cantillons.com.
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