My husband wants me to make a will, separate to his new will. Is this the same as making a "joint will"?
I have a property abroad currently selling. I have one here rented out. We both live in his property which is in his name. He has previously lost substantial savings as a result of a scam. He now wants me to pool my assets which are still in my name into our respective wills.
He has two children and one adopted (from whom he is estranged for many years). I have one child.
Can I keep my assets in my name and divide them among who I wish in my will, without him knowing?
He is suggesting we leave everything to each other. My assets were passed to me from recent inheritance, before I married. I want to see their value appreciate over the longer term. Since he lost his savings before, I am conscious he will be careless again.
Does being married change the legal status including tax? What is the issue relating to estranged adopted person?
I understand if we didn’t each make a will, surviving spouse by default, gets two-third and all the children of both parties get a share from the one third. Does adopted person have a claim to a one-third share?
Is it possible if he insists on us drawing up the wills at the same office, I could change it elsewhere myself?
Ms PM, email
You are clearly feeling somewhat under pressure here and conflicted. And that is not a good thing. I think the one thing on which you need to be crystal clear is that what you do with your will is absolutely your decision and no one else's, as long as it is within the terms of the Succession Act. We'll come to what those parameters set down in just a minute.
The other thing to remember is that you are not alone. Inheritance is a very touchy subject in Ireland but, until recently, it was generally a straightforward matter of divvying up one’s assets among direct family. But family structure in Ireland has been changing over the past couple of decades in particular.
Increasingly we are seeing what might be described as blended families. As in your case, through death, separation or divorce, adults with children are meeting others in the same position and forming their own relationships. In your example, there is the added factor of your husband’s adopted, albeit estranged, child.
It is not reasonable to expect that people in such relationships behave in the same way that would have been the norm in the more traditional nuclear families most of us grew up with. On the other hand, I can understand why people entering such partnerships would be keen that children are not forgotten or left out of arrangements. It’s a complicated business and there is no one easy answer.
Legal right share
So, first up, what must you do?
The first thing to be aware of within families is something called "legal right share". You have outlined the position of people where there is no will – although I should note that stepchildren or adopted children have no claim on an estate in the absence of a will. If you die, they get nothing unless you have made a will and included them in it.
Where there is a will, under the 1965 Succession Act, a spouse or civil partner has a minimum expectation from the estate of the dead spouse or partner. What this share is depends on whether or not there are children. If there are no children, a spouse or civil partner has a legal right to half your estate; where there are children – as in your case – the legal right share is one-third of the estate.
Should your husband die, you have the same right regardless of what is in his will.
The one-third, or one-half, is the minimum. There is nothing to stop spouses or partners leaving each other more – up to all their assets – and there are good tax reasons for doing so. Equally, because you have children and have only had to leave your husband a third of your estate, it does not follow that they must get the other third or that you must include any or all of them in your will.
As long as they are no longer dependent on you and cannot argue they were not adequately provided for in your lifetime, you are not obliged to leave them anything. If all are adult, there is likely no impediment to you providing only for your own child and not the others.
The adopted child may have a legal claim on his adoptive father’s estate: they are not likely to have a claim on yours in the circumstances you outline.
Beware, however, this way discord lies. Your child will still have to interact with their stepbrothers and sisters after you die. And divisions of affection in wills can lead to great disharmony and unhappiness.
Taxation
In tax terms, the advantage to leaving everything to your husband is that no tax will be levied on the estate. And that is why what your husband is suggesting – leaving everything to the other spouse – is very common. However, the make-up of your family is not “standard”, even now.
If you leave it to either your own child or to your stepchildren, including the adopted child, they will all fall into category A – where the tax-free threshold is €335,000.
This can be more of an issue with stepchildren and adopted children as the limit covers all inheritances (and lifetime gifts in excess of €3,000) from all parents – parents by birth, step-parents and adopted parents. With more people involved, that threshold might more easily be reached: anything over it is taxed at 33 per cent.
Finally, what happens if you do consent to drawing up your will alongside him with the same solicitor and in the terms your husband is encouraging – if only to preserve the peace? Could you change it yourself?
There is nothing to stop you changing your will although I would suggest it is done through a solicitor of your choosing – especially if you have already made a legally valid will in the company of your husband.
Upon your death, the only valid will is the most recent one properly drawn up. I would suggest that, if you are making changes after being persuaded to draw up a will with your husband, make sure whatever solicitor you use has the details of the other law firm so that, in the event of your death, your solicitor can notify them of the existence of a more recent will. You should also notify these details to whomever you choose to be your executor and oversee the distribution of your estate.
I sense that, in large part because of your husband’s previous bad luck in being cheated out of his savings, you are reluctant to have your assets put into his name. That is understandable – and he should be understanding of your concerns. You have every right to own assets in your own name, as does he. Any undue pressure to change this position against your will is abuse.
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
