Will – Intestate – Power of Attorney

Posted 09 May 2018 by Alan McCarthy

We maintain that the starting point for the proper organisation of your assets and your succession plan is the consideration of:

  • A Will
  • Power of Attorney
  • Enduring Power of Attorney

What is a Will?

A will is a witnessed document that sets out in writing the deceased’s wishes for his or her possessions, (called his or her ‘estate’), after death.

Reasons for making a will

It is important for you to make a will because if you do not, and die without a will, the law on intestacy decides what happens to your property. A will can ensure that proper arrangements are made for your dependents and that your property is distributed in the way you wish after you die, subject to certain rights of spouses/civil partners and children.

It is also advisable to complete and keep updated a list of your assets. It will make it easier to identify and trace your assets after you die. You should keep the list in a safe place (home safe, Solicitors office etc.).

What happens if you die having made a will?

A person who dies having made a valid will is said to have died ‘testate‘.

If you die testate, then all your possessions will be distributed in the way you set out in your will. It is the job of the executor or executors you named in your will to make sure this happens. An executor can also be a beneficiary under the will.

After you die, somebody will organise your estate, by identifying your assets and possessions, paying any debts you owe and then distributing what is left to the people who are entitled to it. If you have arranged a will before you die, one or more of the executors you named in your will usually has to get legal permission from the Probate Office or the District Probate Registry for the area in which you lived at the time of death to do this. Permission comes in the form of a document called a Grant of Representation.

If you did not name any executors in your will or if the executors are unable or unwilling to apply for a Grant of Representation, documents called Letters of Administration (With Will) are issued. When your estate is distributed, the legal rights of your spouse/civil partner and children, if any, will be fulfilled first after any debts are paid before any other gifts are considered.

What happens if you die without a will or your will is invalid?

A person who dies without a will is said to have died ‘intestate‘. If you die intestate, this means your estate, is distributed in accordance with the law by an administrator. To do this, the administrator needs permission in the form of a Grant of Representation. When a person dies without a will or when their will is invalid, this Grant is issued as Letters of Administration by the Probate Office or the District Probate Registry for the area in which the person lived at the time of death.

It is therefore highly advisable that you organise your Will if you have not done so already.

Power of Attorney and Enduring Power of Attorney

Power of attorney is a legal device in Ireland that can be set up by a person (the donor) during his/her life when he/she is in good mental health. It allows another specially appointed person (the attorney) to take actions on the donor’s behalf if he/she is absent, abroad or incapacitated through illness.

If someone in Ireland is mentally incapacitated (for example, because of illness, disability or a progressive degenerative illness), all of their assets and property are normally frozen and cannot be used by anyone else unless they are jointly owned or, someone has power of attorney to deal with their property or money.

In a larger sense, power of attorney is just one of the legal arrangements that you can make during your lifetime, in the event you become incapacitated or unable to deal with your affairs.

Types of power of attorney:

There are two types of power of attorney allowed under Irish law:

  • Power of attorney which gives either a specific or a general power and ceases as soon as the donor becomes incapacitated;
  • Enduring power of attorney which takes effect on the incapacity of the donor.

A power of attorney can be specific (limited to a particular purpose, for example, sale of your house in your absence) or general (entitling the attorney to do almost everything that you yourself could do). For example, it may allow the attorney to take a wide range of actions on the donor’s behalf in relation to property, business, and financial affairs. He/she may make payments from specified accounts, make appropriate provision for any specified person’s needs, and make appropriate gifts to the donor’s relations or friends.

An enduring power of attorney (EPA) also allows the attorney to make “personal care decisions” on the donor’s behalf once he/she is no longer fully mentally capable of taking decisions themselves. Personal care decisions may include deciding where and with whom the donor will live, who he/she should see or not see and what training or rehabilitation he/she should get. However, if the donor wants, he/she can specifically exclude any of these powers when setting up the power of attorney or can make the attorney’s powers subject to any reasonable conditions and restrictions.

Both cease on the death of the donor.

The setting up of legal solutions can be complex at times. Therefore detailed legal advice should be sought in advance. The sooner you act to organise your affairs, the better it will be for your dependents / family in due course.

Disclaimer: All data and information provided within this article are for informational purposes only. MBC Financial Limited makes no representations as to accuracy, completeness, suitability, or validity of any information and will not be liable for any errors, omissions or delays in this information or any losses, injuries, or damages arising from its use. Please seek independent professional legal advice.


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