My mother refuses to make a will. What happens when she dies?

I am the youngest of five children and have lived abroad for some time although I plan to return home in the medium term.

My mum lives in the family home with two of my siblings who are single with no dependents, as am I. Two other siblings are married with children.

My mother also owns a cottage and some land down the country.

She does not have a will and insists this is not something she is ever going to make. I accept that this is just how it is. As I’m sure you are aware, it’s never quite as simple as land/property and who gets what. These things are usually fraught with resentments, control, perceived unfairness etc.

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My question is, as she does not want to make a will, what will happen to her assets? Do we just divvy everything up in the aftermath or will her assets been taken by the State or such like?

Ms BD

Refusing to make a will is just one of those things that leaves me mystified. I do understand that people tend to long-finger such things and may get caught out by an early and unexpected death. But to deliberately and consciously decide not to make a will at all just seems daft.

It is even less understandable when there are some assets in the family, not least because it can leave some beneficiaries of the estate with an unnecessary tax bill.

As an example in this case, your two siblings who live with their mother could receive the family home in a will without any tax bill – regardless of its value – under dwelling house relief as they will have (presumably) lived there for more than three years by the time you mother dies and will be able to remain there for six years thereafter.

They could even move as long as all the money from the sale of the family home was invested in their new home. Of course all that presumes that they have no share in any other property. But without a will, there is no dwelling house relief.

And, of course, as you say, all too often in families generally there can be little unresolved grievances and misunderstandings that can suddenly blow up out of all proportion when things like inheritance enter the picture. In this scenario, the two siblings who live with your mother could find themselves homeless and, potentially, with a tax bill, which is bound to trigger strong feelings.

Getting down to the brass tacks, what happens if there is no will is very simple. Her estate will be treated under the rules of intestacy. These are laid down very precisely under the Succession Act, and there is no wriggle room. It is an absolutely structured and rigid process.

There are two steps to consider here: first, who will administer the estate; and second, who gets what?

In the case of a will, there is normally an executor(s) named to sort out the estate, gather the assets, pay off all debts, apply for probate and then distribute the net assets in accordance with the terms of the will.

Where there is no will, someone still has to step in and organise these things. Who can do so is set down in the rules of the Irish superior courts, which date back to 1986, specifically order 79, rule 5(1). It sets down a priority order for who can apply to the Probate Office to oversee the estate and its distribution.

Priority list

Top of the priority list is a spouse, or civil partner if there is one living. They can nominate a child to help them with it.

After that, it is down to one or more of the children of the deceased. This would include any adopted children or children born outside of the family relationship to the parent.

Not that it applies here but, after children, it comes down, in order, to a grandchild(ren) of the deceased, the parents of the deceased, siblings including step-siblings of the deceased, nephews/nieces of the deceased, grandparents of the deceased, uncles and aunts of the deceased, great-grandparents of the deceased, other next of kin.

If no one emerges or is available at that point, the State nominates someone to administer the estate.

Those superior court rules also say that a “personal representative”, such as a solicitor, can be nominated by the relevant priority claimed.

Among you and your siblings, if one of you applies, there is no obligation for the others to be informed though the Probate Office can require such notice to be given.

If more than one of you apply and there is a conflict between you as to who does it, the Probate Office will decide after giving three weeks’ notice to other applicants. If there are further objections, it goes to court, which makes no sense for anyone as the cost of settling such a legal action will come out of the estate.

Whoever does it, the job is the same – sort out the assets and liabilities and apply for probate – so it is not something to get hung up over. More importantly, the person volunteering or chosen has no discretion over who gets what. This is set down in part VI, section 67 of the Succession Act.

If there were a spouse and no children, the spouse would get everything. If there were both a spouse and children, the spouse would get two-thirds with the balance shared out among the children.

In your case, where there is no spouse, your mother’s estate will get divided equally among all the children when the time comes.

But what happens if one or more of you dies before your mum, especially one of the three of you who do not have children? This is where it can get tricky. If the person predeceasing your mother has children of their own, those children will share the inheritance that was coming to their parent. However, if the person predeceasing your mother has no children, the inheritance dies with them.

Direct descendant

So, as of now, the estate would be divided into five equal parts, with each of you getting a fifth. If one of your siblings with children dies before your mum, the one-fifth distribution remains the same but the fifth that had been earmarked for your dead sibling is divided among their children. So, if they had two children, each would get a tenth of your mother’s estate and if they had three children, each would get one-fifteenth.

But if one of the siblings with no children dies before your mum, the estate is divided equally – so one-quarter to each. And, yes, if one of the remaining four dies before your mother but has children their quarter is shared among their children.

So each line of the family benefits as long as there is a direct descendant.

That’s the legal stuff, which is nice and clean.

Where this gets messy for you is if someone has to divide the family home, the second cottage and the land equally among the five of you.

Clearly valuations of everything would be required. If the valuations were neat and tidy – for instance, say the cottage equalled one-fifth of the value of the estate – if someone particularly wanted the cottage and there was agreement among you all, the cottage could be given to one person as their share of the inheritance.

However, life is rarely that tidy and it is almost certain that the family home, the cottage and the land would have to be put on the market and sold, with the net receipts divided equally among you. Depending on whether any or all of you already received an inheritance from your father or a large gift (over €3,000 during your parents’ lifetimes from them), you could each receive up to €335,000 without tax out of the estate.

On anything over this, you will be taxed at 33 per cent.

A knock-on effect, of course, is that you would have two homeless siblings, though clearly they would have their share of the inheritance with which to buy or rent their own home.

It may not matter in this case but whatever about the chance to be more tax-efficient in a will – assuming the estate is large enough for it to matter – there is no chance of doing so without a will.

I don’t know if it is just you who have tried to prevail on your mother to consider a will. If so, it might make sense to see if all the siblings can try together to persuade her of the sheer common sense of putting down on paper her active choice for her estate – even if it is that everything is sold to divide the assets equally among all the children. At least that way, there is no confusion as to what is happening and no opportunity for people to feel, however, unreasonably, that they are being “done out of something” by their siblings.

The current approach of your mother is frankly irresponsible.

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