Recently, my friend’s husband sadly passed away unexpectedly. As well as it being a very sad time, it has also been stressful as their affairs were not in order. Like ourselves, they were farming together for years. Now she is snowed under with administrative details from banks, accountants and other entities that her late husband used to deal with.

Hopefully, both my husband and I will be around to enjoy our later years but my friend’s situation has certainly given me a wake-up call. What should we do to get our affairs in order?

I am sorry to hear about your friend’s situation. Bereavement, especially when the death was unexpected can mean spouses or partners have to face sudden legal issues as well as emotional and financial turmoil. This is at a time when they are least able to cope. I’m sure you are a good support to her but you’re also right to look at your own situation. A few simple steps while both people are hale and hearty can make things a lot more manageable when a death occurs.

Property in joint names

Many people incorrectly assume that if they are married, their spouse automatically owns half of what they own. That is not the case. Unless property is legally transferred into both their names as co-owners, they have no automatic ownership rights. It is important to look at your own situation.

If it is not in both names, it would be worth amending. Property can be held as either joint tenants or as tenants in common.

In the case of joint tenancy which would be typical of how property is held between spouses, the property will automatically pass to the surviving spouse on the death of the other co-owner.

The benefit is that it can avoid probate having to be taken out. The drawback is if the co-owner that passes intended to transfer the farm to someone else, such as a son or daughter under a Will, that would not take effect – as the property would automatically go to the spouse.

In the case of tenants in common, which would be typically how siblings hold property, the property will not automatically pass to the other co-owner in the event of a death. Instead, it would pass to whomever that person left their property to in their Will.

If the land is in joint names, it is important to ensure that both owners are regarded as trading as farmers. This means asking your accountant to ensure that both spouses are registered for tax with Revenue as farmers and the farming income is returned in both names. This is especially important when it comes to succession and passing on the family farm to the next generation as the owners will have to be able to avail of Retirement Relief if they pass the assets while they are alive as opposed to a Will.

In order to avail of Retirement Relief, both owners need to be able to show that they have owned and farmed the land for 10 years prior to transfer. If both owners are not registered for tax as farmers, they might struggle to prove that they are farming for the requisite 10 years.

It would be important also to put the herd number into joint names as well as the entitlements. A good time to do this is the start of the calendar year when the DAFM payments have already been made. Again it’s something your Agri Advisor should be able to help with as part of the annual BISS application.

It is worth having a conversation with your spouse as to what your wishes would be regarding the farm should something happen unexpectedly.

It can be really difficult for a widow/widower to make those big decisions, not having their spouse as a trusted advisor to bounce ideas off. Often they are left wondering what their spouse would do were they alive. So have the conversation to say whether you would be comfortable with the farm being leased; or sold; or indeed divided up; or left to one or more children or nieces/nephews. While you might not know at this stage how to divide up assets, having a conversation to give your spouse a steer could at some stage, be invaluable.

Wills and enduring powers of attorney

Without a Will, your assets will be divided up according to the rules of intestacy. This means that if you are married and have children, your spouse would be entitled to two thirds of the share while the children equally would be entitled to the other one third of the share. In the normal course, the children would disclaim their share leaving the spouse to inherit the entire and thereafter, decide what way the assets would be distributed amongst the family.

However, if the children are under 18 years of age, they cannot disclaim their share as they do not have capacity to do so. Consequently, they become co-owners with the parent. This causes legal and tax problems trying to deal with the asset until they are old enough to make decisions.

This is why it’s really important to have a basic Will if you have young children. The most common Will in this situation is leaving property to each other and thereafter, on trust for the benefit of the children until the youngest child is 21. An Enduring Power of Attorney (EPA) is important to allow someone make decisions on your behalf should you lose capacity but are still alive.

Disclaimer: The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information contained in this article, Aisling Meehan, Agricultural Solicitors does not accept responsibility for errors or omissions howsoever arising. Email