Wills and Probate
If you die without making a Will, the law provides that your assets are divided in a particular way. Your spouse or civil partner is entitled to your entire estate if there are no children. If you leave a spouse or civil partner and children your spouse or civil partner gets two-thirds and one-third goes to your children. However matters can become more complicated where your children are minors or where you are separated from your spouse or civil partner. Therefore to protect and provide for your loved ones and also to prevent any unnecessary distress it is always advisable to make a Will.
Q: What happens if I die without making a will?
A:
Q: Where do I start?
A:
Before you make a Will it is advisable to consider the following:
•What assets do I have?
•Who do I want to provide for?
•Who should I appoint as Executors?
•Do I have any specific funeral wishes?
Q: Who is an Executor?
A:
An Executor is the person who carries into effect the terms of your Will. The advantage of making a Will is that you get to choose the person/s best suited to do so.
Q: What if I have young children?
A:
If you have children under 18 years of age, your Will should give directions for the care of those children and how they are to be provided for. Unmarried couples additionally should ensure that each of their Wills clearly states who is to have custody and guardianship of their children if one of them dies. Most importantly, both married and unmarried couples should ensure that their Wills clearly state who is to have custody and guardianship if both spouses/partners die.
Q: What if I am separated, divorced or an unmarried partner?
A:
Being separated or divorced from your spouse does not mean that your spouse automatically loses the legal right to a share of your estate; however, the rights may be cancelled under the terms of a separation agreement or judicial separation or can be cancelled by court order when there is a divorce. These provisions also apply to civil partners under legislation which was commenced in January 2011.
In the case of unmarried partners, the “partner” will have no succession rights and will therefore be limited to whatever rights he/she may establish in contract (e.g. where he/she has financially contributed to the purchase of a property) or whatever you have left for him/her under your Will.
Q: What is Capital Acquisitions Tax?
A:
Capital Acquisitions Tax (CAT) is a tax on gifts and inheritances. Inheritance tax may have to be paid on an inheritance inherited on the death of any person (e.g. under a Will or on intestacy). Gifts and inheritances between spouses and civil partners are exempt.
Q: What is “the Estate”?
A:
When a person dies, everything he/she owned except assets where ownership ceases on death or passes automatically is referred to as the deceased’s “estate”. After payment of debts and taxes, the “estate” is divided among the beneficiaries in accordance with the deceased’s Will or if there is no Will, among the closest relatives in accordance with rules set out in the Succession Act.
Q: What is a Grant of Representation?
A:
A “grant of representation” is the legal document which issues from the High Court Probate Office which allows the personal representative/s to collect all assets of the deceased and administer the estate. Where the person/s named as executor under the will extract a grant of representation such document is known as a Grant of Probate. Where there is no Will, it is known as a Grant of Administration Intestate. Until the Grant of Representation issues from the Probate Office, the personal representatives are generally unable to deal with the assets owned by the deceased person.
