# Parents have no will



## Dove (1 Sep 2008)

My parents, retired farmers, have no will made.  They have 4 children. I’ve urged them to make a will because of the implications of dying intestate. They don’t know what to do as the right option and choose the ‘head in the sand’ option.  All three of my siblings live abroad and each are expecting to be ‘left the place’ in fact some opinions are emotional and heated.  I want us to know where we all stand prior to my parents’ passing for obvious reasons but also because I’ve seen how wills can lead to misunderstandings/rivalry and I don’t want to loose relations as a  result.  Has anyone been through this before or can anyone point me in the right direction for a balanced opinion.

Thanks
Dove


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## ClubMan (1 Sep 2008)

www.CitizensInformation.ie has details of what happens if a person dies intestate. Your parents should talk to a good solicitor to get a suitable will drawn up. They need to do this of their own volition and without undue pressure from you or anybody else.


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## dazza21ie (1 Sep 2008)

I presume that your parents own the property joint tenants and therefore the property will automatically pass to the surviving spouse on either of their deaths. If not they should discuss the matter with a solicitor.

From your post it would seem that it will be a difficult decision for your parents and they will struggle in keeping everyone happy. Under the rules of intestacy when both parents die the children share equally. If your parents are happy with this then i would advise them to do nothing.


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## ClubMan (1 Sep 2008)

This is not correct as far as I know:





dazza21ie said:


> I presume that your parents own the property joint tenants and therefore the property will automatically pass to the surviving spouse on either of their deaths.


Besides there may be other assets (i.e. other than the family home) involved.

* CitizensInformation - What happens the deceased's estate * 


> *Intestacy*
> 
> If a person dies without having made a will or if the will is invalid for whatever reason, that person is said to have died "intestate". If there is a valid will, but part of it is invalid then that part is dealt with as if there was an intestacy. The rules for division of property on intestacy are as follows:
> If the deceased is survived by
> ...


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## murphaph (1 Sep 2008)

The reason the intestacy laws don't come into play CM is that if the deceased owned a property in joint tenancy then it simply doesn't form part of the deceased's estate. It just passes by function of law to the remaing jont tenant(s). ie, it never enters the estate for divsion and is not subject to probate.

Edit: I would say dazza's presumption that the OP's parents owned the property in joint tenancy is 'dangerous' as it was quite common for the husband to be sole owner of a family home prior to the law being changed to guarantee wives joint tenancy (around 1981 IIRC).


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## ClubMan (1 Sep 2008)

I assumed that "the place" in the original post was the farm (house and lands) so I would not necessarily assume that everything went to the surviving spouse when the other predeceases them.


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## Dove (1 Sep 2008)

Yes "the place" is the home house and farm land. They also own another property which is rented.

A couple of options which they are bouncing around is to sell the land, and divide the proceeds between the children while living out their days in the house.  Or leave the lot to one and ask that person to pay off the remaining 3.  You can see what a headache this is going to be for all concerned.


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## MOB (1 Sep 2008)

I feel that parents should not be pressurised about making a will unless there are particular circumstances (as opposed to the general 'everybody should make a will' sentiment) which warrant this.  For example, if one of the parents kids were living at home and looking after parents, it would be unfair that siblings abroad might be able to sell the place out from under him\her.   Likewise, if one of the kids had special needs or an affinity for farming, perhaps the case could be made.

However, if the parents are retired (and the land is presumably rented out,or not being farmed) and none of the kids is at home or has any particular special need of the place (i.e. not involved in farming the land or investing in it) then I don't see that the absence of a will is a particular problem, in circumstances where - it appears - parents have not decided what to do.  

There is clearly a communications problem in the family if three different siblings are all expecting to be 'left the place'.   I think that the problem here runs a little deeper than the mere fact of not having made a will.    It is hard to know what to do here.


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## csirl (1 Sep 2008)

Agree with MOB, if there are no special circumstances and the intention is to divide the estate equally, then no Will the least complicated option. 



> Or leave the lot to one and ask that person to pay off the remaining 3.


 
This option is potentially disasterous for a number of reasons.



> divide the proceeds between the children while living out their days in the house.


 
Whats the rush on then getting rid of their assets? One thing you may consider is that many elderly people require expensive medical treatment, extra care etc. in their latter years. If the assets are given to the children, then their is no legal obligation on the children to pay for any care the parents may require and its possible that some or all of the children may no longer have the proceeds from the sale by the time the parents require extra care. It may be beneficial to your parents if they kept the assets and take a regular income from them while maintaining the option of disposing of some of them in the event of requiring expensive care. Another thing you may have to consider is putting in place a legal mechanism/procedure whereby the income can be used for care and/or certain assets can be disposed of if necessary in the event of your parents becoming too infirmed to deal with their own affairs - this is best set up through family solicitor.


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## Dove (1 Sep 2008)

Ok I had thought that everyone needed to have a will otherwise half the proceeds went to the tax man.  Thanks for your input everyone.


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## ClubMan (1 Sep 2008)

Bear in mind that capital acquisitions tax and tax planning might still be relevant issues but these are for your parents to consider as they see fit.


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## dazza21ie (1 Sep 2008)

murphaph said:


> Edit: I would say dazza's presumption that the OP's parents owned the property in joint tenancy is 'dangerous' as it was quite common for the husband to be sole owner of a family home prior to the law being changed to guarantee wives joint tenancy (around 1981 IIRC).


 
Wives were never guaranteed joint tenancy. The Family Home Protection Act 1976 gives non-owning spouses some protection as the owning spouse must have their prior written consent before selling the family home. The government tried to bring in legislation to give the non-owning spouse a right in the family home but this was deemed to be unconstitutional.


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## huskerdu (1 Sep 2008)

Dove said:


> Ok I had thought that everyone needed to have a will otherwise half the proceeds went to the tax man. Thanks for your input everyone.


 
This is not the case. An estate is not taxed, the inheritence of each person is taxed. Capital Aquisitions Tax is no different if you inherit because you were named in a will or if there was no will and you inherited because of the rules of inheritance. 

In making a will, there may be scope for minimizing the tax paid by successors, but there is no higher tax just because there is no will


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## Complainer (1 Sep 2008)

Doesn't the absence of a will create a bit of an administrative nightmare for the children, and probably incur otherwise unnecessary legal costs in sorting out probate?


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## murphaph (1 Sep 2008)

Complainer said:


> Doesn't the absence of a will create a bit of an administrative nightmare for the children, and probably incur otherwise unnecessary legal costs in sorting out probate?


No, not really. It just takes a little bit longer to establish that no will actually exists (you need to place an ad in the solicitors gazette or suchlike asking does anyone know of the existance of a will) and after a short while you can apply for letters of administration. In a way an absence of a will can be good because nobody can challenge the intestacy laws the way they can challenge a will. Wills make sense for a lot of people but not everyone needs to leave one. I am content that of I died tommorrow (touch wood!) the laws of intestacy would distribute my assets exactly as I would if I were to write a will but the intestacy laws are more watertight than a will I could write to do the same thing!


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## csirl (2 Sep 2008)

And it saves the hastle of having to write a Will in the first place, pay solicitors fees and remember to update it again (and pay more fees) as your circumstances change.

There are many a person who has written a Will, but forgot to update it and so left out someone who joined the family later e.g. new born child.


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## ClubMan (2 Sep 2008)

csirl said:


> And it saves the hastle of having to write a Will in the first place, pay solicitors fees and remember to update it again (and pay more fees) as your circumstances change.


The solicitors' charges for drawing up or amending a will should be relatively nominal in the greater scheme of things as far as I know. To avoid making a will because of the few hundred €s this might cost could be a very short sighted penny pinching approach that could cost even more in the long run.


> There are many a person who has written a Will, but forgot to update it and so left out someone who joined the family later e.g. new born child.


Wouldn't a dependent child have an automatic right to a certain share of the assets regardless of what a will stated - i.e. their statutory rights might override what the will said?


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## csirl (2 Sep 2008)

> Wouldn't a dependent child have an automatic right to a certain share of the assets regardless of what a will stated - i.e. their statutory rights might override what the will said?


 
In certain circumstances yes - the moral obligation to provide for children may kick in. But in a lot of cases this share could be a lot less than what they would have received in the absence of a Will.


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## Bronte (2 Sep 2008)

csirl said:


> And it saves the hastle of having to write a Will in the first place, pay solicitors fees and remember to update it again (and pay more fees) as your circumstances change.
> 
> There are many a person who has written a Will, but forgot to update it and so left out someone who joined the family later e.g. new born child.


A will costs relatively little, and you can make it include children yet to be born, I've done so.  OP you should not force your parents to do anything but they could go to a solicitor and get advice on the best course of action, without you (so there is no pressure on them),  and then it is up to them to decide what to do.  They would be well advised to hold onto their assets as a previous poster said to make sure they have a comfortable retirement.


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## ClubMan (2 Sep 2008)

Bronte said:


> they could go to a solicitor and get advice on the best course of action, without you (so there is no pressure on them)


A solicitor who I contacted about such matters recently told me that they even have a policy of speaking to each spouse individually as there is often a conflict of views on what's best or what the aim/goal is in relation to a will *between the married couple themselves*!


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## Bronte (2 Sep 2008)

ClubMan said:


> A solicitor who I contacted about such matters recently told me that they even have a policy of speaking to each spouse individually as there is often a conflict of views on what's best or what the aim/goal is in relation to a will *between the married couple themselves*!


And they also do it in case one of them has an undeclared child and may wish to make provision for that child etc ! Great pressure can be brought to bear on people to make wills.


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## csirl (2 Sep 2008)

> A will costs relatively little, and you can make it include children yet to be born, I've done so.


 
I just dont see the point in having a Will if you want your estate to be passed as per the standard inheritance rules. Whats the point? Why over complicate things? A Will is a much weaker document than standard inheritance rules, so why do one? Are you  familiar with the phrase "If it ain't broken dont fix it". You've nothing to gain and everything to lose as there is always the risk that there will be a mistake, challenge or legal complication with the Will.

Yes, for non-standard inheritance and special circumstances, you should make a Will, but not if you estate is to follow the standard rules in inheritance legislation.


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## Dove (2 Sep 2008)

Bronte said:


> And they also do it in case one of them has an undeclared child and may wish to make provision for that child etc ! .


 
What if one of the children was not fathered by the husband but has been passed off as his?  Does this child have the same inheritance rights  as the other 3?


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## Vanilla (2 Sep 2008)

csirl said:


> I just dont see the point in having a Will if you want your estate to be passed as per the standard inheritance rules. Whats the point? Why over complicate things? A Will is a much weaker document than standard inheritance rules, so why do one? Are you familiar with the phrase "If it ain't broken dont fix it". You've nothing to gain and everything to lose as there is always the risk that there will be a mistake, challenge or legal complication with the Will.


 
If a client comes to me to make a will, and it turns out that he wants to benefit the people who will benefit anyway on intestacy I will tell him this.

Many people want to make a will regardless for a myriad of reasons:

To appoint an executor, to detail funeral arrangements, for distribution of trinkets, family heirlooms, jewellry, care of pets, and even to give reasons why they want to benefit certain people ( or not, as the case may be).

There is one technical difference in the extraction of a grant in either case- an administration bond is required on an intestacy.


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## ClubMan (2 Sep 2008)

Dove said:


> What if one of the children was not fathered by the husband but has been passed off as his?  Does this child have the same inheritance rights  as the other 3?


Isn't there some assumption in _Irish _law that the children of a marriage are de facto fathered by the husband even if this is not actually the case?

Or dealing with the case of a minor where both parents die and trustees/guardians need to be appointed perhaps? Otherwise, as far as I know, the estate is in limbo until they turn 18?


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## putsch (2 Sep 2008)

Be careful. Intestacy rules may not achieve the desired result. 

If assets are e.g. in the sole name of one of the parents and that parent is the one to die first then under intestacy the estate is shared among surviving spouse and children. This can cause major problems when the surviving spouse and the children disagree as to the next steps. It can result e.g. in a situation where an elderly widow's children can force her to sell, what she most likely thought of as, family assets so they can take their share immediately.


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## murphaph (2 Sep 2008)

putsch said:


> Be careful. Intestacy rules may not achieve the desired result.
> 
> If assets are e.g. in the sole name of one of the parents and that parent is the one to die first then under intestacy the estate is shared among surviving spouse and children. This can cause major problems when the surviving spouse and the children disagree as to the next steps. It can result e.g. in a situation where an elderly widow's children can force her to sell, what she most likely thought of as, family assets so they can take their share immediately.


When my father died intestate our solicitor told us my mother had a legal right to reside in the family home until the end of her days if she wished, despite 'only' owning 2/3 of it and my brother and myself owing the remaining 1/3-we could not force the sale of it. Hypothetically we could force the sale of the non-family home parts of the estate. This may be wrong, but it's what our solicitor told us.


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## Brianne (2 Sep 2008)

Reading the OP's query , my advise  would be to do nothing . The  parents, particularly if they are farmers are more than likely well aware of the implications if they die intestate. With the other three siblings thinking that they will inherit, unless the OP for some reason thinks that he/she should also inherit, the OP will get nothing but grief from those abroad. Stay out of it, time will sort it out anyway. Your parents obviously are not too bothered about who will get what. Giving advise could lead to being accused of undue influence.


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## Vanilla (3 Sep 2008)

murphaph said:


> When my father died intestate our solicitor told us my mother had a legal right to reside in the family home until the end of her days if she wished, despite 'only' owning 2/3 of it and my brother and myself owing the remaining 1/3-we could not force the sale of it. Hypothetically we could force the sale of the non-family home parts of the estate. This may be wrong, but it's what our solicitor told us.


 
It's not wrong exactly, she would have been entitled to appropriate the family home towards her share.


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## AriesWoman (8 Sep 2008)

Hi


How about your parents make a will that the house goes to you and then on your death it goes to the other siblings? Thats what my grandparents did. 

They had 4 daughters (including my mum). They had a farm and my aunt  who never married and had no kids was living with them looking after them. The other 3 children lived in various parts of Ireland. The farm and house were in my gran's name - she was an only child who had inherited it from her parents and she made a will that when she and my granddad died my aunt got the place for her life and on my aunt's death it went to the other 3 daughters. It meant when my grandparents did die my aunt stayed in the house and it couldn't be sold from under her. My aunt died and my mum and her other 2 sisters got the place equally between them and then its up to them what to do with their shares.


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## j26 (8 Sep 2008)

AriesWoman said:


> Hi
> 
> 
> How about your parents make a will that the house goes to you and then on your death it goes to the other siblings? Thats what my grandparents did.
> ...



The potential problems there are first that a life estate such as that is virtually worthless for raising a mortgage which might be essential for maintaining the property, and second the potential CAT implications for the other siblings - CAT may be payable on the gift, so they may have to pay tax, and get no tangible benefit for several years.  Its something worth considering, but its not necessarily the best option.


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## AGENG (9 Sep 2008)

Slightly off topic - but in case anyone might be misled I point out the following

IMO anyone with young kids should make a will that at least provides for their guardianship in the event of both parents dying. Not a nice thought but very important. 

The advice of posters to make no will and leave all to the intestacy laws overlooks the underage children.


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## AriesWoman (9 Sep 2008)

j26 said:


> The potential problems there are first that a life estate such as that is virtually worthless for raising a mortgage which might be essential for maintaining the property, and second the potential CAT implications for the other siblings - CAT may be payable on the gift, so they may have to pay tax, and get no tangible benefit for several years. Its something worth considering, but its not necessarily the best option.


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## AriesWoman (9 Sep 2008)

I don't think they had to pay a huge amount of tax. Also someone a neighbour was working the land (it was a farm) and was paying rent so the place was generating an income. Also it prevented rows about who inherited what as everyone got an equal share.


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## Wing&Prayer (10 Sep 2008)

Apologies in advance if I repeat anything mentionned above. I haven't had the time to go through it all. This was new to me too until my father in law died last year and my own father earlier this year. My father in law died intestate while my own father had left a will.

My advice having lived both situations is to strongly encourage your parents to leave a will. There is absolutely no penalty, hidden or otherwise to not leaving one. One thing which does make a difference though is that if one of your parents dies intestate, then a solicitor MUST deal with probate. For a start, this is going to cost money (for a modest estate, possibly in the region of 7 - 10 thousand Euro).

The only way to avoid this is to have a will and to deal with probate yourself (as a named executor on the will) after a parent's demise. I dealt with probate on my fathers demise and believe me, it is not difficult provided records of accounts, property title deeds etc are reasonably easily found. Of course you can employ a solicitor to do it but why waste that amount of money on a solicitor? While my father in law died almost a year ago now, his solicitor is not even close to achieving probate, my own father died in Jan and I received probate a month ago. This means that funds that may have been 'tied up' in accounts under my fathers name are now my mothers to do with as she pleases (and because there was a will, and the estate was left to her, there is no messy division of assets equally between surviving family members). I assume both of your parents are alive. If this is the case, if one dies intestate the estate will be divided equally between ALL remaining family members (including widow / widower).

From experience also - the lack of a will can cause serious family issues after the demise of a parent. This is not something I would recommend to anyone!

Good luck! W&P


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## Bronte (10 Sep 2008)

Wing you are incorrect about the division of the estate on intestacy, if there is a spouse and children the spouse gets 2/3 and the children get 1/3.  See Clubman's post for the details.


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## Wing&Prayer (10 Sep 2008)

I stand corrected Bronte, thank you.

Another issue that merits investigation is whether or not the family home (and any other properties held) are in joint names, or one name.

If their is a will, and the property/s are in joint names, the property is automatically excluded from calculation of the deceased persons estate, as it reverts to the remaining joint name. This can save thousands in solicitors probate fees.

Food for thought!


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## dazza21ie (10 Sep 2008)

Wing&Prayer said:


> I stand corrected Bronte, thank you.
> 
> Another issue that merits investigation is whether or not the family home (and any other properties held) are in joint names, or one name.
> 
> ...


 
I presume you are also aware of the law relating to resulting trusts were joint property *does not* pass to the remaining joint tenant?

Sometimes the thousands in solicitors probates fees is money well spent because should anything go wrong (despite how simple it may seem) every practising solicitor is covered by professional indemnity insurance and any loss suffered will be compensated for.


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## Wing&Prayer (11 Sep 2008)

No, Dazza21ie, unfortunately I am unaware of that law (not a solicitor!), and yes, _sometimes _the money spent on solicitors fees is indeed money well spent.

My points are simple.

1. 'No will' means default solicitor involvement in taking out probate, equals unnecessary expense. Some people may elect to employ a solicitor anyway.

2. Where a will exists, a named executor may take out probate on the deceased persons estate. It requires some work (and exercise) on the part of the executor, but it is very achievable, and possible to complete in many instances sooner than a solicitor (obviously depending on the solicitor!)

Having done it myself, I found it to be painless, and in my particular case I saved approximately €16,000 for my mother. I would rather that money remain in her pocket than in someone elses.

I found www.citizensadvice.ie to be an excellent service in this regard. Believe me, I have nothing against solicitors, but this particular exercise does not require one in the majority of everyday cases where a will exists.

VBR, W&P.


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## dazza21ie (12 Sep 2008)

Wing&Prayer said:


> No, Dazza21ie, unfortunately I am unaware of that law (not a solicitor!), and yes, _sometimes _the money spent on solicitors fees is indeed money well spent.
> 
> My points are simple.
> 
> ...


 
I will reply using same numbers.

1. You can make a personal application with or without a will. The only difference is that if there is a will then the executor should be making the application. If there is no will it is governed by law as to who makes the application. Not everyone knows this law and most of them are solicitors so a person might employ the solicitor for their wisdom! 

2. It is possible for an executor to take out a Grant of Probate. It may also be quicker to do this way also as a solicitor may have hundreds of files to work on but the executor may only have the one application to make. However, if the executor or any other person applying isn't careful it s/he could get into trouble. There is quite a few scenarios where an executor could be held secondarily liable e.g. payment of C.A.T, C.G.T on sales from the estate, claims by Department of Social & Family Affairs, claims by beneficaries etc. 

It has been said on this site numerous times that for a simple estate DIY. The problem with that is the only people who really know whether it is a simple estate are solicitors who are trained to deal with the estate.


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