Kieran Coughlan: Don’t ignore tax and legal plans

Last week’s seminar, Farming Law & Tax, hosted in Cork by solicitor Karen Walsh and myself, was an eye opener for those who attended.
Kieran Coughlan: Don’t ignore tax and legal plans

Of particular interest to attendees was the concept of taking a very planned approach to making a will.

Surprisingly, statistics suggest a little over half of people over 55 have made a will. And only 20% of people aged 35 to 44 have made a will.

The lack of planning by persons within these cohorts is astounding, and can have quite serious consequences.

For persons with young children, the failure to prepare a will, and appoint guardians for children, and trustees to manage the assets of the estate, can end up in very difficult situations, in the event of an untimely death.

Say, for example, in the case of both parents having an untimely death, in the absence of a will, it will be necessary to make an application to the courts, who will in turn appoint guardians.

Other practical issues that arise for farm families include the absence of planning for financial access for spouses.

In the event of a person dying, where that person has sole access to a bank account, or is listed as the sole applicant on the herd number, there can be very real and very difficult financial consequences for the remaining spouse.

Firstly, the spouse will have to seek approval as administrator of the estate.

Secondly, bank accounts will be frozen until such time as probate will be taken out.

Having the farm bank account in joint names with a spouse can overcome this very difficult position.

Having the herd number in one sole name can cause difficulties in the event of the death of the holder.

Generally, cattle can neither be bought nor sold until the estate is administered.

In the case of farm families, where both parents die prematurely, the failure to nominate trustees to manage the assets will mean that leasing the farm lands may be difficult to arrange.

Outside of the very basic benefit of preparing a will, simple financial planning such as the taking out of life assurance policies can give the financial security needed by those left behind.

The structure of family units has changed hugely over recent decades.

Family structure can of course include a variety of arrangements such as marriage, civil partnerships, partners (non-registered), co-habitants, and a mix of arrangements with one or more partners having previously been married, now separated or divorced or more informally simply living apart.

The consequences each arrangement in terms of succession are hugely important to each couple, and the lack of planning in this regard is frightening.

Taking the example of a not untypical scenario: say, a young couple, not yet engaged or married, decide to build a house on a site acquired from a parent.

In the event of an untimely death, the remaining partner actually has no automatic rights to succession.

Creating a will can get past the succession issue.

However, the tax consequences of this scenario can be horrendous.

In the event that the deceased has created a will, and intimates that the property is to be transferred to their partner in the event of their death, the surviving partner is deemed to have effectively received the bequest from a stranger .

And any value received over €16,250 is taxable at a whopping 33%.

Interestingly, another point raised at our event was that succession rights can still follow to an estranged spouse, in the case of separation.

In a variety of circumstances, a person who may have previously been married can find themselves in a new and in some cases long-term relationship.

In the event of death, the ex-spouse can have greater inheritance rights, and even automatic inheritance rights, rather than the new partner.

In the event of young farmers taking over a farm, an often overlooked aspect is the job of preparing a will.

Again, from a tax planning perspective, it can be hugely important to make such arrangements, in order to prevent a massive inheritance tax in the event that the farm reverts to parents outside of a five-year window.

It may be possible to address or mitigate many of these issues with proper tax and legal planning.

As always, each individual should obtain relevant professional advice pertinent to their own circumstances.

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