Making a Will – Information for Family Members
One of the most frequent enquiries Inclusion Ireland receives is on the topic of Making a Will.
Why it is important to make a will?
Many parents of a person with an intellectual disability are especially concerned about making proper provision for the future. It is important to make a will as soon as possible, as dying intestate (without a will) can create complications with surviving spouses and children receiving different amounts.
It is always worth remembering that changes to a will can always be made through a codicil, which is a device used to change parts of a will.
Do I need a solicitor?
It is usual to involve a solicitor. A solicitor is especially recommended if you are looking to set up a trust fund as the legal accuracy is particularly important.
If a will is made up incorrectly or is not valid, then the rules of intestacy kick in, and the property is shared among surviving relatives.
What is a valid will?
To make a valid will, the following criteria must be satisfied:
- The will is in writing.
- The will is made voluntarily without pressure from other people.
- The person making the will is of sound mind.
- The person making the will is over 18 or has been married.
- The will must be signed at the foot of the will and witnessed.
- The witnesses or their spouses must not benefit from the will.
What is “Sound Mind”?
This means that you have the mental capacity to make a will and understand that you are making a will.
What is Intestacy?
Intestacy, or dying intestate, means dying without a will. When this happens there are rules that set out how property or assets are divided among surviving relatives. The word “issue” means children or offspring.
What happens if a person dies without a will?
Family situation of deceased – no will made Surviving relatives Spouse or Civil Partner without issue then Spouse or Civil Partner takes whole estate Spouse or Civil Partner with issue then Spouse takes 2/3 and Issue share 1/3 equally No spouse or civil partner without issue then Parents take whole estate jointly or if one parent alive –takes whole estate Intestacy means dying without a will, Issue means children or offspring
Do I have to leave my property to my children equally?
No, you do not have to leave property to your children equally. However, a child, (under or over 18), may bring an application under the Succession Act that proper provision has not been made for them under the will.
The court will look at the child’s position in life, as well as any payments made to them during the lifetime of the testator.
Should I make particular arrangements for my son or daughter with an intellectual disability?
Careful consideration should be taken when leaving property to a person with an intellectual disability. While many parents wish to plan for the future, it is worth remembering the means test for any state benefits being received. A person’s payment from the Department of Social Protection may be impacted if they inherit a certain amount.
Some people have used trust funds when benefiting their son or daughter in a will. Generally speaking, the capital in a trust fund will not interfere with state benefits, and irregular or once-off payments from the trust are also generally not assessed as means. However, regular maintenance payments would be considered as cash income and be assessed as means. Advice should be sought from the Department of Employment Affairs and Social Protection for the latest information.
What is a discretionary trust?
Many parents look towards setting up a trust fund and often use a discretionary trust. There are many types of trust funds available, and a discretionary trust is only one to consider. In a discretionary trust, the trustees have discretion over when and how much they give to the beneficiary. It is important that trustees are people who you trust, and although it is up to the trustees to make decisions about the trust, you may leave a ‘letter of wishes’ to guide the trustees.
A Discretionary Trust.
- Is a way of indirectly benefitting a person.
- The person setting up a trust is called a Settlor.
- The Settlor can set up a trust while alive, or through a will.
- Where the trust states that it is exclusively for the benefit of an incapacitated person there is an exemption of the tax levies.
- The assets in the trust are not considered for means testing of Disability Allowance.
- Two or more people called trustees are named to decide how the assets in the trust are used.
- As the name suggests the trustees have complete discretion as to how the assets are used.
When setting up a discretionary trust, who can be a trustee?
A trustee could be someone in your family, a friend, or a professional person such as a solicitor or accountant. Careful thought should be given to the number of trustees.
It is often a good idea to have three trustees, as where there are two trustees, there is a chance that a disagreement could occur over how to use the money. The age of the trustees is important too, as it is desirable that the trustee outlives the beneficiary.
Are there tax implications when making a will/trust fund?
Particular attention should be given to Capital Acquisitions Tax thresholds and any changes made in the annual government budgets should be noted. There are also Trust Taxes to consider, and Discretionary Trusts attract an initial and annual tax.
There is an exemption to this tax in the form of people who, are because of age or improvidence or physical, mental, or legal incapacity incapable of managing their affairs.
Visit www.revenue.ie for further information
Making a Will – Information Resources
Down Syndrome Ireland – Planning for the Future.
Family Carers Ireland – Guide to the Legal Aspects of Caring
Citizens Information Service – Making a Will
Citizens Information Service – Disability Allowance Means Test
Revenue Irish Tax and Customs – Discretionary Trust Tax (DTT)
Law Society Ireland – Find a Solicitor/Firm
Golden (yellow) Pages – Solicitor, Ireland
What is meant by Emergency Planning?
As a household supporting a family member with an intellectual disability, you can plan and make decisions now that will help you and your household during an emergency. The plan looks at
- the needs and daily routine of your household members.
- how the household will manage if a main caregiver becomes ill or for some other reason is unable to provide the care or support, they usually do
- how the household can manage a change in the care or support needs of a family member with high support or medical care needs.
Emergency Planning - How to Start Getting your Household Ready
Talk with the people who need to be included in your plan.
Meet with the people you live with, other relatives, and friends.
Talk over what to do if you or a family member becomes ill or there is another change in circumstances.
Talk about what each person might need. Make sure everybody in your house knows what they should do.
How can I plan to care for a family member with higher support or medical support needs?
Healthcare: If worried about medical care or changing medical needs ask your doctor for information about planned check-ups, preventive healthcare and monitoring health for symptoms that indicate change.
Be Aware: in medical situations some individuals with an intellectual disability, for example, Down Syndrome, may present atypically with serious illness (e.g., fever may be masked) and co-morbidities are common. Know, what is their normal when well and when ill.
HSE Health Passport: When a person with an intellectual disability must go into hospital for treatment or attend any healthcare setting it can be a good idea to have a health passport. The Health Passport will let healthcare staff know all about abilities and needs, everything from medication to allergies and the best ways to communicate. This will help them give better care in a healthcare setting. Please ensure that the information is up to date. Use the HSE Health Passport Guide when filling out a health passport so it is as good as it can be.
The HSE Health Passport is also available as an app. The HSE Passport ID App is available on IOS and Android. The five sections contained within the app include: “All About Me;” Medical History; Communication; “Looking after me” and “Keeping me safe and Happy.”
This fun “Mission Possible” video explains all about health passports, their use and why they are so important.
Housing: If you need social housing, if you have additional support needs, do not wait until you are in a crisis to find out about your housing options or to apply for social housing support. Visit the Housing and Housing with Residential Services FAQ (Frequently Asked Questions) sections of our website for information about housing options and how to apply for housing and support.
How can I plan to care if the main caregiver is unwell or unable to provide care?
Emergency Care Plan: If a family member has high support needs, you can complete an emergency care plan. Then others know what to do if the main carer becomes unwell or is unable to provide care because of an emergency. Family Carers Ireland have an Emergency Care Scheme for family carers
A Good Support Network: Think about increasing the number of caregivers you can call on in case some caregivers become unwell or cannot work. Talk to local service providers or home-care agencies about support options.
Talk to family and friends about extra support they could provide, and when you may need to call upon them.
Talk with neighbours you know and trust about your emergency planning.
Introduce people in your support network to each other. Then they can connect and work together easily if you or a family member become unwell.
Seek information about and try to connect with organisations in your community that can help.
Write it Down: Make a telephone contact list. Include family, friends, carpool drivers, your doctor, local disability service providers and anyone else you know who may be of help.
Make a list of the local services and organisations that you can contact if you need information, health care services or other supports.
Put your emergency care plans in writing, share with household members and others involved, or let them know where they can find it. Keep it up to date.