TEN COMMON MISCONCEPTIONS ABOUT PROBATE
1. Only one witness is needed to witness a Will being signed.
Incorrect – A Will must be signed by the Testator (the personal making the Will) in the presence of two witnesses.
2. An Executor cannot receive a gift in a Will.
Incorrect – An executor is entitled to receive a gift in Will.
3. There is no need to make a new Will after marriage.
Incorrect – Marriage invalidates an existing Will. Consequently a new Will must be drawn up and signed after a marriage.
4. A witness to a Will can receive a gift in the Will.
Incorrect – A witness is not entitled to receive a bequest in a Will. If a person has witnessed a Will and is left a gift in that Will, the Will is not invalid but the witness is not
entitled to receive the gift.
5. No Inheritance Tax is paid by children who receive an inheritance from their parent in Will.
Incorrect – A child is entitled to receive an inheritance not exceeding €225,000.00 from their parent. The balance is taxed at a rate of 33% ( as at October 2014).
6. If a deceased has no Will the assets are forfeited to the State.
Incorrect - If a person dies without making a Will, their estate goes to their next of kin. It is only if the next of kin cannot be traced that the assets are forfeited to the State.
7. A valid Will cannot be challenged by children of the deceased.
Incorrect – A disappointed child is entitled to make a claim against the estate under Section 117 of the Succession Act, 1965 even if a valid Will has been made by their deceased parent.
8. Every child should receive an equal share of their parent’s estate.
Incorrect - The law does not provide that a child is entitled to any specific share of their parent’s estate. However a disappointed child can bring a claim against a deceased parent’s
estate under Section 117 of the Succession Act, 1965.
9. A separated spouse is not entitled to challenge a Will.
Incorrect – This entirely depends on the terms of a Separation Agreement/ Judicial Separation. If the separated spouse have waived their Succession Act rights, there is no entitlement.
However if not, they are entitled to a one third share of the estate (if there are children of the marriage) and a two thirds share if there are no children of the marriage.
10. The surviving spouse / surviving civil partner must pay inheritance tax on an inheritance they receive from their spouse / civil partner.
Incorrect - There is no inheritance tax to be paid by the surviving spouse / civil parAtner.