Appointing Beneficiaries

A Will sets out your wishes. You are entitled in your Will to leave your estate to whomever you wish. When making this decision it is important to take into account certain rights that individuals may have. Your right to freely dispose of your assets may be limited by rights of individuals under Irish and foreign legislation. Certain rights that individuals have under Republic of Ireland legislation are discussed below.

Rights of a spouse

Where there is a Will

If you have left a Will and are survived by your spouse (and your spouse has not renounced or given up his/her rights to your estate), then that spouse is entitled to what is called a "legal right share" of your estate. The value of the legal right share depends on whether there are children.

This legal right share is:

One-half of your estate if you do not have children
One-third of your estate if you do have children

The duty of the executor is inform the spouse of their right. You can leave a bequest in your Will to your spouse. Your spouse can choose to take either the bequest specified under the Will or his/her legal right share. There are time frames that the spouse must comply with when exercising their option.

Where there is no Will

The rules of intestacy apply.

Rights of a Civil Partner

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 came into effect from the 1^st January 2011 and introduced rights for couples who are not married, including same sex couples. Civil partners can now register their civil partnership after certain criteria are complied with.

Rights of a civil partner after registration of the civil partnership include:

Rights in relation to the shared house e.g. consent in relation to transfer, sale or mortgage unless a Court dispenses with consent.
Maintenance Order
Legal right share of deceased civil partner’s estate.

Where there is a Will

If you have left a Will and are survived by your civil partner (and your civil partner has not renounced or given up his/her rights to your estate), then that civil partner is entitled to what is called a "legal right share" of your estate. The value of the legal right share depends on whether there are children.

This legal right share is:

One-half of your estate if you do not have children
One-third of your estate if you do have children

Where there is no Will

The rules of intestacy apply.

Rights of a Cohabitant

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 which came into effect from the 1^st January 2011 took certain steps to provide rights for cohabiting couples in long term relationships, whether same sex or opposite sex relationships. A cohabiting couple does not have the same legal rights as married couples or civil partners in Irish Law. A cohabitant is defined in the Act as "one of two adults (whether of the same or opposite sex) who live together as a couple in an intimate and committed relationship and who are not related to each other within prohibited degrees of relationship or married to each other or civill partners of each other".

The Act introduced a redress scheme which provides that a cohabitant may apply to the Courts for a variety of orders where the relationship ends due to a break up or death after the 1^st January 2011. The Act makes it clear that economic dependancy is necessary when the Court makes an assessment. A cohabitant may apply for provision to be made for them from the Estate of a deceased cohabitant. The share which a cohabitant could receive shall not exceed the legal right share which a spouse or civil partner would be entitled to (see legal right share of spouse or civil partner). The application must be made within six months of the date of the Grant of Probate/Administration.

Currently, a cohabitant who receives a gift or inheritance under a Will of a deceased cohabitant has a tax threshold of only €15,075 (above this amount the cohabitant will pay tax at 33%). However, if the cohabitant qualifies as a cohabitant under the legislation they can apply to court and if a property adjustment order is made, there will be no gift or inheritance tax issues on a transfer and no stamp duty or capital gains tax is payable.

Rights of children under a Will

Unlike a spouse as set out above, a child does not have any absolute right to inherit their parent's estate where a parent has made a Will.

A child or children may only make an application to court if he/she feels that he/she has not been adequately provided by the Will or otherwise of their parent. It is important to seek legal advice before making such an application. An application must be made within 6 months of the taking out of a Grant of Probate. The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 includes a provision to permit a child of a deceased civil partner to make a Court application also.

Adopted children will, from the date of the Adoption Order, be treated as a child of the adoptive parents. Children includes non-marital children and does not include foster children or step children.

Request a Call Back or contact us directly and one of our team will discuss your Will or Estate and how we can assist you.