Question on making a will..

[taxpayer]

Hi


Myself and my husband are making a will and keeping it very simple. If he dies, I get everything. Likewise, if I die, he gets everything.


We have 2 dependent children so have also had to put in place what happens if both of us die before the children come of age. We have named 2 close family members as executor, trustees & guardian.


The only question is what age the children have to be before they have access to our assets in the awful event that we should both die before that. In the standard will our solicitor has drafted, it is when the younger child turns 23. We originally said 23 for them both. In this case the older child would be 29.


We thought this was unfair on the older child having to wait that long so asked could the solicitor change it so that each child inherits when they turn 23. But the solicitor has said that this would be a more complex Will (with separate vesting dates) and in that case we would be charged double what was agreed for the standard will. We would be setting up two trusts with two separate vesting dates. The solicitor also stated that they are not in a position to offer tax advice on this.


Should we leave it as a standard will and then get separate tax advice on setting up the trusts? I.e. so that both children come of age at 23? Will one coincide with the other?


Our solicitor doesn't seem to very forthcoming on this.


Please if anyone has any advice on this, that would be great.

 

[GabbyTheKing]

Don't consider this advice but an effort to deal with a few items. I'll assume the solicitor is a male for simplicity although I can't find anything indicative above.

Firstly get tax advice as Discretionary trusts are quite a specialized area and worth the money to get tax advice if you are considering doing it. If you are only giving a small estate and for fear that you might not get advice the below is a brief suggestion although should not be used in substitution to professional advice;

It is my understanding that under S15(1cii) Capital Acquisitions Tax Consolidated Act that where the youngest kid ceases to be "under the age of 21" the trust becomes subject to a charge to Discretionary Trust Tax(DTT). DTT is computed in line with S18(2) AND would be 6% of taxable value ie if the trust has a taxable value worth 1,000,000 then the DTT is 60,000. This will be reduced to 3% if the assets are distributed within 5 years WHICH they would be in the above scenario. In addition to this an annual levy of 1% will also be charged based on S23(1). Moral of the story is I wouldn't wait until the youngest is over 21. I'd distribute the DT before the 21st of the youngest. That will leave the oldest at 27 and finds a middle ground and the oldest responsible for watching over the younger See this doc for info. They won't let me put in a link but its available if you google search cat-part05.pdf

Secondly to my knowledge the solicitor is a bit harsh charging you twice as it is only a written document. I could understand him charging your estate twice to perhaps set up two seperate trusts with different vestment dates or what ever the structure but not really you at this stage. Surely all he has to do is state the two vesting dates and say that half the assets go to x when he turns 23 and half to Y when he turns 23. It might be a little complicated but his a solicitor this should be his bread and butter IMO. Its not like he has to set up two trusts at this stage as if he was managing it. Its also a query that most solicitors will give a will for €20-75 quid based on the possible earnings from the estate on death many including my own are free especially without tax advice(Free as a term of my house purchase). Doubling a fee like this shouldn't be an issue really but if its more I'd question why are you paying so much for a will and have you shopped around. One solicitor once said to me "wills are like money on deposit or potential energy" you IMO are in a powerful position of being able to pick and choose your solicitor. I know a specialized will with tax advice can cost you alright but also save you depending on the assets in question but this is definitely not that as his not giving too much specialist advice IMO. The more I think about it really all he is doing is making a will and if it was me I'd tell him if his not able you can go elsewhere, you paid for a will and want it the way you want it full stop. Its only a written statement. He entered a contract to give you a will for a certain price and if he won't do that he is breaching his contract and you are entitled therefore to a refund. It might PG never happen.

Hope that is of some help best wishes

 

[taxpayer]

Hi

Thankyou for the reply. Yes i think we may have to shop around. All we want is to make a simple standard will and make sure our children are looked after.
Also the solicitor is female.

Regards

 

[GabbyTheKing]

Ah yeah the odds were pretty much 50:50 it would be a female! Just be aware of DTT when setting the ages of the kids entitlements. If its a house etc it can often mean the asset has to be sold to fund the DTT. I personally also provided that the "carers" could also apply for large essential costs of the kids upbringing before the date to be officiated by the neutral trustees. i.e. for college fees etc

 

[T McGibney]

Secondly to my knowledge the solicitor is a bit harsh charging you twice as it is only a written document. I could understand him charging your estate twice to perhaps set up two seperate trusts with different vestment dates or what ever the structure but not really you at this stage.

If the OP wants a more complex will than the bog standard one and the solicitor confirms the additional cost in advance, where's the problem?

 

[GabbyTheKing]

If the OP wants a more complex will than the bog standard one and the solicitor confirms the additional cost in advance, where's the problem?

I have no problem. I just told her to shop around. Is it really that complicated? This type of stuff should be bread and butter for any solicitor worth their salt. If she was giving a free will or a tiny fee will I'd understand but a fully paid will doubling the price I've little sympathy! If the amount was trivial in nature I dare say she wouldn't have taken issue! The payment for the will comes in the estate a very well known fact for any solicitor I know at least! In this day and age the consumer has the power to shop around! I guarantee she will get at least one quote for under €75 quid if she writes to them and states her intentions.

 

[T McGibney]

I have no problem. I just told her to shop around. Is it really that complicated? This type of stuff should be bread and butter for any solicitor worth their salt. If she was giving a free will or a tiny fee will I'd understand but a fully paid will doubling the price I've little sympathy! If the amount was trivial in nature I dare say she wouldn't have taken issue! The payment for the will comes in the estate a very well known fact for any solicitor I know at least! In this day and age the consumer has the power to shop around! I guarantee she will get at least one quote for under €75 quid if she writes to them and states her intentions.

The classic mistake when making a will is to save maybe €50 by getting the cheapest will possible and failing to ask the solicitors who prepared it what they are likely to charge to process the estate in the event of the testator's death.

I know of one case where a solicitor did a will for an elderly couple for £50 and less than a decade later charged (and eventually received) €60,000 to process it, as the value of one of their properties had temporarily ballooned in the meantime.

 

[GabbyTheKing]

The classic mistake when making a will is to save maybe €50 by getting the cheapest will possible and failing to ask the solicitors who prepared it what they are likely to charge to process the estate in the event of the testator's death.

That IMO is the mistake of the executor! They are the ones who should get a quote prior to letting the solicitor engage!! A will is just a written document! The executor can take the business where ever they like and the solicitor should not engage without the permission of the executor! Thats why its important to pick shrewd executors!

The best clients I see would first and foremost get a quote to speak with a good tax consultant for tax advice. Never Tax advice from a solicitor unless they are a qualified CTA or similar (seen some mad stuff in my time). Depending on the complexity maybe 250 quid for a chat and structure for a basic will. Its best to avoid any big pit falls such as DTT above, secondly get a good but reasonably priced will drawn up. Generally I find the quality of wills tend to be 100% from all solicitors cheap or expensive. Finally instruct your executors to get a few quotes prior to ever engaging a solicitor after a death!

 

[T McGibney]

Shrewd executors are all fine and well in theory but circumstances can be difficult after a bereavement, particularly where there has been a sudden or particularly traumatic death. Executors can themselves be vulnerable in such situations and many simply don't have the stomach to shop around or switch solicitors at that stage.

That's why its vital that the person making the will takes extreme care in selecting for that purpose a solicitor whom they can trust to safeguard their own and their survivors' interests. A few quid here or there in fees is in the scheme of things utterly irrelevant and this is one task for which people should not be shopping around on the basis of price alone.

 

[Bronte]

Shrewd executors are all fine and well in theory but circumstances can be difficult after a bereavement, particularly where there has been a sudden or particularly traumatic death. Executors can themselves be vulnerable in such situations and many simply don't have the stomach to shop around or switch solicitors at that stage.

That's why its vital that the person making the will takes extreme care in selecting for that purpose a solicitor whom they can trust to safeguard their own and their survivors' interests. A few quid here or there in fees is in the scheme of things utterly irrelevant and this is one task for which people should not be shopping around on the basis of price alone.

In relation to your 60K example, I would suggest the executor was at fault for not asking for a price in advance. The value of the property has nothing to do with the price. But in real life of course a solicitor will often base it on the value. That is human nature. One avoids this by getting a few quotes.

__________

Coincidentally I've a new solicitor in the last week as my old trusted one has retired early. I was offered free wills for all my siblings. A loss leader to get people in the door. Will my siblings avail of it. Not a hope. There is no reason to pay a lot of money for a will. Many credit unions have an annual offer on this (around €100 if I recall) and it's something most people should do, but don't. It is up to your executor later to shop around. Many people don't realise they do not need to use the executor who drafted the will to do the probate work. And many don't realise, for simple cases, you can do probate yourself. Another poster on here once did a thread on how to do just that. I've done it myself and it was very straightforward.

 

[T McGibney]

In relation to your 60K example, I would suggest the executor was at fault for not asking for a price in advance.

They did ask, but they were brushed off with sales patter. Both their parents had died within months of each other, each following a distressing illness. There was pressure from other beneficiaries to realise the estate quickly. A perfect target for the spivs.

 

[kateLaila]

I made my own will based on a draft of a previous will made by solicitor. My executors are 2 brothers whom I trust. My daughter is 15 if anything happened to me they are also her trustees until she us 25. They would be free to access funds for her care and education. If we are both gone I have just split it between my larger family nieces and nephews etc. I thought I was safe enough with this I was not aware the estate would be taxed on anything other than what the invested capital earned. From reading this post maybe I do need more advice particularly tax advice. I note T mcGibney suggests CTA qualified is that capital tax aquisitions? Where can I get this advice and is it ok to draft my own will in the way that I have?

 

[Gordon Gekko]

No, Chartered Tax Adviser (AITI).

 

[Bronte]

I made my own will based on a draft of a previous will made by solicitor. My executors are 2 brothers whom I trust. My daughter is 15 if anything happened to me they are also her trustees until she us 25. They would be free to access funds for her care and education. If we are both gone I have just split it between my larger family nieces and nephews etc. I thought I was safe enough with this I was not aware the estate would be taxed on anything other than what the invested capital earned. From reading this post maybe I do need more advice particularly tax advice. I note T mcGibney suggests CTA qualified is that capital tax aquisitions? Where can I get this advice and is it ok to draft my own will in the way that I have?

I think you'd be extremely foolish to draft your own will. Especially considering the fact that it's the cheapest legal work a solicitor will ever do for you.

 

[GabbyTheKing]

Sorry haven't been on in a while KateLaila. Making your own will must also be signed and witnessed for it to be a valid will. Make sure none of your witnesses are beneficiary's of the will as you will find that a witness can not in any circumstances be a beneficiary also somebody should be available to say that you are of sound mind etc for a valid will. In the case of an invalid will intestacy rules will apply. I would also suggest you might be overlooking your daughter. If you don't have a spouse and are a single parent with legal guardianship over your daughter you must suggest a legal guardian for your daughter otherwise in the worst case scenario she could end up in care if a minor. To be honest I wouldn't do my own and I like to have it in the possession of a neutral person who will not edit it or fake another after my death. Have a look at the below pdf from the law society in relation to DTT, and other issues as mentioned above. I would say you are probably thinking about this alot my friend. If I was you I would head into the solicitors get a few quotes and put your mind at ease. Ask him/her if he knows anything about Discretionary Trust Tax during the quote request. Have a fair idea of the 6% and 21 years of age as also wrote in the below document. I think after getting an informed opinion you will change the age of your daughters benefit to under 21 if I'm being honest.

[broken link removed]

In relation to a CTA and the DT Tax you will need somebody who is sharp not every accountant will know this stuff nor every solicitor. You might be lucky enough to find a sharp solicitor who understands DTT that gives you a good quote. If you don't look around the area for somebody who has a website with the Institute of tax designation on the badge. I honestly think if you have over 310k worth of goods get a quote to get advice on an inheritance from a good tax consultant. They will be able to plan it better and give you ongoing advice. Perhaps availing of the 3k annual limit into a Credit Union account. Best of luck and I honestly hope you find the answers you need without huge costs.