After speaking at a recent Teagasc ‘Transferring the Family Farm’ seminar in Dunmanway, and meeting farmers, the amount of people who do not have a will made always surprises me.
Some seem to think that making a will is something “older people” do.
Frequent excuses are that it may tempt fate, they are too busy, or they do not have enough assets so there is no need. Others feel overwhelmed by the thought of it.
From my experience, when people make a will, particularly after putting it off for so long, they tell me they feel a great sense of relief.
Having a will is very important.
If your assets are limited, and your intended distribution is simple, you certainly do not need anything complex.
Giving attention to how you want your estate divided and who you want to administer it are still important.
If for nothing else, having a will makes your estate much easier to administer, because it will name the executor who will have the authority to act.
Dying without a will, and without having named an executor, can lead to a costly and arduous estate administration, resulting in professional fees that could have otherwise been avoided. If you are unsure what to do with your estate, it is always better to do something than nothing.
People often say they simply do not know where to start. So let’s break it down. Let’s look at John and Mary’s situation for example.
They are married. They are farming. They have four young children in primary school. They are not sure yet which child will be interested in farming in the future, if any, and not sure how to divide the estate.
As a result, they feel stuck in the mud, and have done nothing about making a will.
Action is always better than no action. If John and Mary are unsure about how to divide the estate between their children at this stage, that does not mean that they should not make a will.
They could first consider making a simple will, giving everything to each other, and appointing each other as executor of each other’s estate.
As circumstances change and the children grow up, it will be easier to identify who is interested in farming, who is interested in becoming a doctor, lawyer, teacher, etc, and how to divide the estate.
If, for example, John does not make a will, Mary would inherit two thirds of John’s estate, and the four children would inherit the remaining one third in equal shares.
So each child would receive a one 12th share in the estate. That’s a lot of fractions, it can be messy, and results in a situation that most parents would not want.
It can also create legal and tax complications down the line, should some of those children not wish to actively farm the land.
If John and Mary want to create a will that caters for their respective spouse not surviving them, they can create further provisions in their will. Often parents with young children choose to leave all of their assets to their spouse.
The will further provides that in the event of the spouse not surviving them by 30 days (for example, if both parents were in a serious car accident), the assets are to be left in trust until the children reach a specified age.
Parents may wish their estate to be divided equally between their children when they reach a specified age, for example 21 or 23 years, or when the youngest child finishes third level education.
In a farming situation, it may be advisable to consider setting up a discretionary trust for your children until the youngest reaches the age of, for example, 21.
This provides your trustees with full power to apply capital and income at their discretion, for the benefit of your beneficiaries.
This may mean that some beneficiaries will receive more than others, which is up to the trustees to decide.
A discretionary trust is especially useful in a farming situation where the beneficiaries are young, and time is needed to see which, if any, of the children might be interested in taking up farming.
The trustees will be responsible for looking after the assets of your estate, and they may have significant discretion under a discretionary trust as to how to deal with the assets and how the assets will ultimately be divided up.
It is important to choose wisely. The trustees should be people you trust, who are prudent with money.
If you have children under 18, your will should give directions for the care of those children, and how they are provided for.
A guardian is a person who you feel would raise your children in as close a manner as to how you would raise them.
People often chose a brother or sister (and their spouse/partner) to fulfil this role.
Remember to discuss this with your sibling/partner before you appoint them under your will.
There is no good reason not to make a will.
It is always advisable to draw up a will based on your set of circumstances now, and you can easily amend it at any point in the future.
Making a will can represent excellent value for money when you compare it to the tax savings that can be made when you take proper advice.
Reluctance and inaction often stem from superstition (that the worry of making a will will somehow hasten your demise). But surely the worry of not making a will would be far worse.
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