Parents have no will

[Dove]

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

 

[ClubMan]

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.

 

[dazza21ie]

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.

 

[ClubMan]

This is not correct as far as I know:

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

• spouse but no children - spouse gets entire estate
• spouse and children - spouse gets two-thirds, one-third is divided equally between children (if a child has already died his/her children take a share)
• parents, no spouse or children - divided equally or entirely to one parent if only one survives.
• children, no spouse - divided equally between children (as above)
• brothers and sisters only - shared equally, the children of a deceased brother or sister take the share
• nieces and nephews only - divided equally between those surviving
• other relatives - divided equally between nearest equal relationship
• no relatives - the state

 

[murphaph]

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).

 

[ClubMan]

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.

 

[Dove]

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.

 

[MOB]

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.

 

[csirl]

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.

 

[Dove]

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.

 

[ClubMan]

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.

 

[dazza21ie]

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.

 

[huskerdu]

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

 

[Complainer]

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?

 

[murphaph]

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!

 

[csirl]

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.

 

[ClubMan]

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?

 

[csirl]

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.

 

[Bronte]

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.

 

[ClubMan]

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!