Do my elderly parents need to make a will?

Q&A: An only child wonders if a will is necessary if she is to inherit her parents’ estate

There are good reasons for having a will: most importantly, they provide legal clarity over precisely what a person wants to do with their possessions after the die

There are good reasons for having a will: most importantly, they provide legal clarity over precisely what a person wants to do with their possessions after the die

 

I am the only child of elderly parents. They have not written wills, being of the opinion that these are not necessary where I will be the ultimate sole heir. Their principal private residence, main current and savings accounts are in their joint names.

We did recently ask a solicitor, who was dealing with another matter for them, if the absence of wills would make for more difficult administration of their estates after death and understood that it wouldn’t make a great difference.

However, a medical professional has advised that they do write wills, suggesting that these would make administration of their estates more straightforward, quicker and less costly (and avoid the need to look for other heirs (although there are none).

We have obtained two indicative prices from solicitors for drafting what to us would seem to be straightforward wills and, frankly, were taken aback at the likely cost. My parents are reluctant to spend on this, unless there is undeniably good reason to do so.

We would therefore welcome a neutral observer’s opinion on this issue.

Ms C.R., email

As a general principle, having a will is a good idea. But it shouldn’t cost the Earth.

Every time figures are published, it is shocking how many people have not bothered to write a will. Even allowing for the fact that these general surveys cover all ages, and younger people – however ill advisably – assume they are immortal, the figures for older people are still worryingly high.

There are good reasons for having a will. Most importantly, they provide legal clarity over precisely what a person wants to do with their possessions after the die.

But why worry, you might ask, if everything is ultimately destined for the only child – as in this case?

The reason is that, under intestacy – the legal position that exists when someone dies without a will – the law determines how a person’s assets are allocated. And, under intestacy, a person dying and leaving a spouse and child behind will see their estate divided two-thirds/one-third in favour of the spouse.

When a spouse dies, most people tend to pass on the estate in its entirety to their husband / wife – not least because that avoids any issues of inheritance tax as transfers between spouses are exempt.

However, without a will, any assets not in joint names would be treated as being under intestacy. That could mean them being sold or otherwise disposed of and the money split between you and the remaining parent.

Apart from the distress this could cause, you could find yourself facing a bill for any inheritance that comes your way when your first parent dies. Isn’t this a bit academic if you are the ultimate beneficiary anyway? Possibly, but timing could be an issue for you.

A further complication, as with most things left in the hands of the State, is that the whole exercise can take some time, which can be financially awkward in itself.

Now, in the case of your parents, the process is somewhat simpler. You say that their main assets – ie the family home, their main bank account and savings accounts – are in joint names. Under a concept called survivorship, these assets should pass directly to the remaining spouse when the first one dies. But you would need to check for any other life policies and other assets as well, and they could still fall under the intestacy rule.

And this, ultimately, is why a will is a good idea. Over the course of a long life, we build up assets and commitments that we can often later forget about – credit union savings, a forgotten shareholding etc. If these are not in joint names and there is no will setting out how they should be distributed, they will come under the intestacy rule.

Having said that, drawing up a will should not be an expensive exercise – especially in a position like yours where it seems to be a fairly straightforward situation. What’s not expensive? A couple of hundred euro, I would have thought.

I’d suggest that’s money well spent.

While you are looking at the whole issue of wills, you might also consider suggesting to your parents that they draw up an enduring power of attorney.

These too are legal documents and they also require input from their medical practitioners. However, they make life very much easier if either, or both, parents reach a point where they are no longer capable of making decisions for themselves.

Under an enduring power of attorney, they get to determine who makes decisions for them – including decisions about their personal care. They can even pick and choose which decisions they wish to leave in the hands of their chosen “attorney” – in all likelihood, you.

In the absence of such an instruction, you can have a situation where health professionals are making decisions on your parents’ behalf.

Your parents’ GP would need to confirm they are healthy enough mentally to agree to the terms of such an agreement and their solicitor would also need to sign to confirm they understood the full import of the decision, as would they.

Any such agreement would only be activated if you apply to the courts to do so, and you would need a letter from their doctor confirming that position.

Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street, Dublin 2, or by email to dcoyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice.

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