# To Will or Not to Will ?



## Will (1 Sep 2004)

My parents want to make a will leaving their home to myself.
They are joint owners (no mortgage).
I am the 'only child' so there is no complications with fighting siblings !

They have been quoted Euro80 by a solicitor who said they need 2 wills because they are joint-owners.

How complicated is it to draw up such a will given that no other assets are involved - just simply pass the home to their only son.
If one parent dies the other becomes full owner - is this correct ? Then when the other parent dies the property passes to the offspring (me).

Wouldn't all this happen automatically anyway without a will ?
Do they really need a will for this situation ?


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## MOB (1 Sep 2004)

It is not at all complicated to draw up the sort of will outlined above.  But then, €80.00 is not at all dear.

You are probably correct that all will come to pass as outlined by you without there being any will.  But you would feel awfully stupid if - having told your parents not to bother making a will - some sort of bizarre circumstance were to emerge so as to deprive you of some of your inheritance. (example - what if your father sired another child in his youth, one he perhaps doesn't even know about, and this kid turns up to put you out of the house?)


Everybody who owns property should have a will.


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## Redbhoy (7 Sep 2004)

I think you can do up a will for free with the citizens advice bureau!


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## sherman (8 Sep 2004)

The type of will you're talking about here is a mutual will. I would be very wary of a layman messing about with anything other than a very very basic will.

It may cost you €80 now, but it would cost you far more to sort out any mess arising from even a small mistake. You're better off spending the 80 now to get it done right.


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## john (21 Sep 2004)

*To will or not to will*

Is the 80 euro not a red herring.
Does it not cost up to 3% of total estate when it goes to probate.
That to me is excessive and totally unjustifiable,
but i could be wrong with this.


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## sally (21 Sep 2004)

*To will or not to will*

You need to distinguish (a) making a Will from (b) 
on death, extracting a Grant of Probate to the estate of the person who made the will. 

Two entirely separate issues. 

Many people as executors or beneficiaries now extract their own Probate.  Percentage fees in Probate are no longer usual and in any event most people have enough sense to shop around. 

sally


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## Quandary (4 Oct 2004)

*Probate questions*

Is taking out Probate on a will essential?  

Say, if siblings are willing to sign over their interest in the family home to one sibling living there, could they do that without the whole Probate business?

Then, if approaching a solicitor to do the Probate, what should I know beforehand and roughly how much does the process actually cost? i.e. the percentage charged by solicitors?

Also, has anyone taken out probate personally?  What was the process like?  Was it reasonably simple to handle as a layperson?  What was the experience like?


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## sueellen (4 Oct 2004)

*Re: Free Will with many credit unions*

If your parents are members of a credit union many of them allow free wills through solicitors.


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## Jooper (4 Oct 2004)

*wills.ie*

Free wills on www.wills.ie


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## Sleppeah (4 Oct 2004)

*tax on inheritance sans will*

Seem to remember someone (not here) saying that if you don't make a will then the inheritance can be taxed up to 33% - any truth in this?


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## Guest (6 Oct 2004)

*Probate questions*

> Is taking out Probate on a will essential? 

I don't think so although I'm not clear on the implications of not doing so or the relevant pros and cons involved. My own father's will didn't go to probate. Everything passed to my mother and there were no complicating factors so she was able to transfer all assets into her name without any hassle. However I'm not sure how the lack of probate might affect more complicated or contentious situations...


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## ToWill (25 Oct 2004)

*Probate*

Myself and my sister carried out the Probate on my mothers will - simple straight forward. Contact the Probate office and ask for the relevant forms. When you return them you will have to wait about 12 weeks for an appointment with a Probate officer. People at the Probate office are very helpful and will give you as much guidance as you need. This will save you a large fee that would normally go to a solicitor.
As far as I can remember every will must go to Probate. My father's will did not but once my mother died we had to probate his will first and then my mother's so it is best to do this at the time.
Hope this helps.


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## browtal (9 Dec 2004)

*Re: Probate*

lucky sisters to be able to complete probate together. My situation as follows
Mother left will, instruction:-
 estate to be divided equally between 3 siblings.  
Executor being my sister.  The will was properly drawn up by Mothers solicitor.  My sister took out probate and sold property concerned to her daughter for knock down price and the remaining two received their share of the daughters purchase price.  
I consulted my solicitor and he advised me there is nothing I could do to get my real share of the property.  Why make a will?  How does one safeguard against this happening. willow


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## MOB (10 Dec 2004)

*Executors duties*

"I consulted my solicitor and he advised me there is nothing I could do to get my real share of the property"

This is not true.  

Either the facts are not quite as clear-cut as presented by you, or you were badly advised.  An executor has a duty to realise the assets in a responsible way, and selling assets to a child of the executor at a knock-down price would be a clear breach of this duty, for which you would have a clear legal remedy.

Just to be clear, you would not (usually) be able to actually prevent the executor selling the house, but you would be entitled to take proceedings (for compensation)against an executor who had sold an asset for demonstrably less than its market value.


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## browtal (10 Dec 2004)

*Re: Executors duties*

thanks for your prompt reply.  The facts are, as far as I can explain, as stated. My solicitor has advised me that the barrister whom he contacted in regard to this matter has advised him that it would be difficult to establish a claim.
Before the sale the executor presented a valuation from a local auctioneer stating that the value of the property was 'X' .  I made it clear to the executor, through the solicitor handling the probate, that I considered this valuation to be very low compared to similar properties that had been sold at the same time and same location.  
Some months later he informed that he had sold the property disregarding my instructions for X - Y'.   Yes X - Y.  
My solicitor feels that to prove that the auctioneers valuation was inaccurate  may be difficult as the occupant may claim to have done repairs or improvements should we make a claim now.  It was about 15 months ago since the girl moved in.
My solicitor had been kept informed of the events as they happened. I feel very let down by my solicitor who in hindsight should have advised me to have the house valued myself while the probate was being addressed.  I feel confined by this public forum to give more information.
I would be very grateful if you have any positive advise for me.   Willow


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## rainyday (10 Dec 2004)

*Re: Executors duties*

You might need to post some of the figures (X & Y) to give people a better idea of your concerns. 

One option might be to get a new solicitor.


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## browtal (11 Dec 2004)

*Re: Executors duties*

rainyday,   the figures relating to the sale, I recken lowest market value, the property was sold below 27% of its market value. 
 Is the period of time which has elapsed a problem for appointing another solicitor?


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## rainyday (11 Dec 2004)

*Re: Executors duties*



> I recken lowest market value, the property was sold below 27% of its market value


And just to be 100% clear, the market value you are basing this on was the one from the independent valuer - right?


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## browtal (12 Dec 2004)

*Re: Executors duties*

the market value on which the 27% is based is the value of other similar properties in the area at the time of the sale.  The independent valuers estimate was undercut by 7%.  
The challenge is with the auctioneers valuation which is not in line with property values, in the area, at the time.  The valuation was given by an auctioneer friend of the Occupiers Mother. 
I think we would need to challenge the auctioneers valuation.  Two similar properties, in the same area, were sold in the same time frame which could be used for comparison.  thanks willow.


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## rainyday (12 Dec 2004)

*Re: Executors duties*

I'm starting to understand why your solicitor was reluctant to take this further. It really isn't as simple as saying 'two other similar properties were sold for higher prices' in the area. How do you know the real prices at which the other properties were sold? How 'similar' is 'similar' - have you got a professional opinion stating that the three houses were in a comparible price range. As a first step, can you get an alternative auctioneer/valuer to give you a written valuation of your property by comparison to the other properties?

If you reckon the auctioneer was misbehaving, you should make a formal complaint to the IAVI.


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## rainyday (12 Dec 2004)

*Re: Executors duties*

I'm starting to understand why your solicitor was reluctant to take things forward. It really isn't as simple as saying that the property in question was 'similar' - how similar is similar? Can you get a written opinion from a valuer/auctioneer indicating that the amount received was out of line? If you reckon the auctioneer was misbehaving, you should make a complaint to IAVI.


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## browtal (13 Dec 2004)

*Re: Executors duties*

Rainyday, thanks for your interest in my dilemma.
The properties sold, in the same geographical rural region, 1/2 mile apart. 
All origanally Co Council Cottages with 1/2 acre. The two sold had 2 reception rooms, bathroom, kitchen, 3 beds. 

Mothers had been extended and contained 3 recepton rooms, bathroom 3 bedrooms also 4 years prior had all new windows and doors fitted plus some other improvements including central heating.

The location of Mothers is slightly better, being 1/2 mile closer to the city.
I have spoken to the auctioneer for one of the properties and the daughter of the other property told me the price obtained.
So my valuation is based on as near possible like with like.
I am surprised and disappointed that my solicitor did not request that I get a valuation before the property was sold.  It is difficult to get an accurate valuation now as the house is occupied and I am sure access would be denied.  I would be happy to request one of the auctioneers who sold the other property near Mothers.  
My fear is that I have left things too late.  It has been an emotional journey for me and unless I have a reasonable chance of being successful I do not want to travel that road.
I have strong professional reasons for believing that a will can be upheld.  willow


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## rainyday (13 Dec 2004)

*Re: Executors duties*



> I have spoken to the auctioneer for one of the properties and the daughter of the other property told me the price obtained.


So you are basing your allegations of fraud by the executor & the auctioneer and incompetence of your own solicitor on a conversation with an auctioneer and a family member - To me, this is not a sound basis for such allegations.

I'm sorry for your loss and sorry that you've gone through a difficult time, but I really don't see that you have hard evidence that you have been 'done'.


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## browtal (15 Dec 2004)

*Re: Executors duties*

hi rainyday,  thanks for your reply.  I may have worded my email incorrectly.  
I can prove the sale price of the two properties in the same area.
The estimate which I have quoted is the figure my solicitor has placed on the property.  My solicitor, from day one, was and still is in agreement about my estimate of the value of the property.

His explaination is  'it is going to be difficult to prove', without an independent valuation, versus the existing one.  
 I now feel my solicitor should have given me this information while the property was unoccupied during the 17 months following Mothers death,while or possibly, before probate was administered.  Had he advised me I could have addressed the issue while it was still current.
I was not aware that I could have addressed the problem with the probate office, as I now understand.   My solicitor was aware that I feared this type of outcome.  My solicitor knows personally all parties concerned and was fully aware of the conflict that had existed regarding Mothers care before her death.
It is the saddest of outcomes that Mothers Will was not honoured and that she was badly treated during her final illness by the executor.   Willow


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## darag (15 Dec 2004)

*Re: Executors duties*

it still sounds like a very fishy.  was it sold through a particular auctioneer?  how long was it on the market?  how was it advertised?  have you sought a second opinion legally?


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## browtal (17 Dec 2004)

*Re: Probate*

I have not sought the advice of a second solicitor as I feel in my delay, in not getting a true valuation, I have prejudiced my case.  
How can one get an accurate valuation without entry to a property?
If I am correct then I feel I was badly advised by my solicitor.


The property was not advertised,  

It was sold direct by the executor, not through an auctioneer, to my sisters daughter.

No body was told that the house was for sale.

As already explained I received a letter through the executors' solicitor making an offer. I replied ,in writing, with copy to executor and his solicitor, that the offer was below the current market value of similar properties and suggested that the open market was the only place that would put an accurate valuation on the property.
This was around Jan/Feb(I do have accurate records of all corresp).
The following Sept my brother told me that house was sold to my niece for 7% less than the low valuation of their auctioneers.
I fully expected to see the property for sale in our local paper but it did not appear.   At the price of the sale I would have purchased the property myself.  
If I could solve the problem about gaining a proper valuation I would be anxious to get further advice.
In my official capacity I work for a registered body, for the elderly and one of the important areas I would handle is to encourage older people to make a will with their solicitor.  Now I find this difficult as what does a Will mean if the executor has the right to do what they like:  I have also come across similar cases and, dismissed them on the grounds that I was getting one side of the story.
In fact my work is the main reason I find it difficult to drop this issue.  The amount of money involved will make no significant difference to my way of life. As my niece does not have a home of her own, if she had requested that I consider this situation I would have had no difficulty in reaching a compromise.
Sorry it is so long but I feel I am making a poor job of expressing my case.
thanks Willow


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## darag (21 Dec 2004)

*Re: Probate*

bowtal, i'm not really in a position to advise you; i only entered this discussion out of curiousity and to some extent to counter the tone of some of the previous messages.  i would have thought that an argument could be made that the executor of the will did not fulfill their duty to realise the max for the property by not advertising it/putting it on the market.  however this is simply a worthless opinion 'cause i've no legal expertise.  i don't see what you can do besides get a second opinion legally but you should consider whether the money you feel you've lost justifies further time and expense.


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## browtal (21 Dec 2004)

*Re: Probate questions*

rainyday, thanks for your further mail.  On answer to your questions
:-
No advertising was done for sale of the property 
No   Auctioneer was appointed, apart from the valuation. 
The executor told me, after the sale,that it was waste of money appointing an auctioneer.  He also told me at this stage that he had received two valuations but is now unable to produce the second valuation.
The property was not put on the market.
No body was told the property was for sale.
Following the completed sale, about 17 months after the death of the parent, I was told that the property was sold to my niece.
Willow


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