Many of the concerns people have about succession planning are based on misconceptions about wills and probate.

Here are 10 of the most common myths surrounding wills, probate and succession planning.

1. If you have no will, the state or Government get everything

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This is one of the most common misconceptions. The fact is that the state or Government will only inherit if you have no surviving next of kin. The rules of intestacy provide that a spouse inherits all your assets or two thirds if there are children. The children get the remaining third. If there is neither spouse or children surviving, the parents inherit. If there are no parents, siblings inherit or their surviving children. If there are no brothers, sisters, nieces or nephews surviving, the next of kin inherits which is the person standing nearest in blood relationship to the deceased.

2. There has to be a formal reading of the will

Television dramas have popularised the image of families gathering while a solicitor formally reads the deceased’s will. In reality, there is no legal requirement in Ireland for a formal reading of a will. Instead, the executor can opt to either share the entire will or extracts from the will with the relevant beneficiaries.

3. Everyone in the family is entitled to see the will

Only the executor is entitled to see the will. While beneficiaries are often informed of their inheritance and may receive relevant extracts, family members do not automatically have a right to receive a copy simply because they are next of kin. Once a Grant of Probate has been issued, however, the grant and the will become part of the public record and may be inspected by members of the public.

4. Beneficiaries cannot act as executors

It is perfectly acceptable for a beneficiary to also act as executor and is generally encouraged as it is in their interest to have the estate administered promptly. It is very common for spouses to appoint each other or for an adult child who will inherit the farm to also administer the estate. However, beneficiaries should not witness the signing of a will, as doing so can affect their entitlement to inherit under that will.

5. Several executors need to administer an estate

There is no legal requirement to appoint more than one executor. In practice, however, many people choose to appoint two executors so that if one is unable or unwilling to act, another person is available.

6. Once I make a will, I never need to look at it again

A will should never be regarded as a document that is completed once and forgotten about. Family circumstances, financial affairs and farming businesses evolve over time. However, you do not need to update your will when you change property as your will can be drafted in such a way to cover whatever land or money you own at the time of death. Marriage generally revokes an existing will unless it was made in contemplation of that marriage so you need to make a new will if you get married.

There is no legal requirement to appoint more than one executor

7. Anyone could find my will if they looked for it

Despite what people think, a will is not registered in any central register. Thus it is important to ensure that your executors know where your most up-to-date will is. While most solicitors keep a hard copy of the original will in a fireproof safe and have a scanned soft copy, original wills can go missing. That is why it’s recommended that you keep a hard copy of your will somewhere safe and let the executor know where it is located if they need to access it.

8. My partner will automatically inherit everything

If you are unmarried your partner will not inherit any of your estate unless you specifically provide for it under your will. They have no rights under the Succession Act unless you are a civil partner and that only applies to same sex couples.

9. You only need a will in Ireland

Most people assume that a will in their home country is sufficient to ensure that all their wishes are met and property abroad can be passed on. However, this is not necessarily the case. It is best practice for a person to also have a will in the country in which the foreign property is located as each country will have their own legal system and taxation rules.

10. Children can inherit, even before they turn 18

This is another myth. When a child inherits from a will, they cannot take the inheritance until they come of age. That’s why people generally appoint trustees under their wills. Another alternative is that the parents are given authority under the will to accept the inheritance for the benefit of the children.

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 and Tax Consultants does not accept responsibility for errors or omissions howsoever arising. Email aisling@agrisolicitors.ie