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Wills & Trust Wills

Our Wills, Probate & Estate Planning Team have a wealth of experience in advising on both Wills and Trust Wills.

What is a Will?

A will is a written document setting out an individual’s wishes as to how their assets are to be distributed after their death.

A will doesn’t have to be in any particular format but it must comply with the provisions of section 77 and section 78 of the Succession Act 1965.

Why is it Important to Make a Will?

One of the main reasons for making a will is to ensure that your wishes as testator are implemented on your death. It enables the testator to carry out an element of tax planning and to utilise reliefs and exemptions that may be available to minimise the capital acquisitions tax payable by the beneficiary on taking the inheritance.

It also enables the testator to extend the tax-free thresholds available by including for instance the children of a beneficiary in the bequest to that beneficiary and so adding additional tax-free thresholds.

A testator can provide for certain beneficiaries who may need additional protection such as minor children, incapacitated beneficiaries, improvident beneficiaries and can provide for them by means of a discretionary trust. The only trust that can be created on an intestacy is a bare trust where property is held for minor children until they reach their majority at 18 years of age.

Significantly more powers and discretion can be given to trustees when a discretionary trust is created or alternatively a fixed trust. This can only be done through a will. It cannot arise on an intestacy.

If there is no will, then the property will pass under the rules of intestacy and the testator has no control over varying the application of those rules.

Guide to Making a Will

For further details on the importance of making a will, the key requirements to be taken into account and the rules of will execution, please see Part I of our Guide to Making a Will – Key Considerations Explained.

For further details on how a will can be revoked, when foreign wills are relevant to consider and the requirements for a witness, please see Part II of our Guide to Making a Will – Key Considerations Explained.

Bare Trust: A Bare Trust is a trust where the trustee holds property as a nominee of the beneficiary. It is open to the beneficiary to call on the trustee to transfer the property to the beneficiary at any time unless the beneficiary is a minor (under 18 years of age). A minor beneficiary of a bare trust can only call on the trustee to transfer the property to the beneficiary when he or she reaches his or her majority (on attaining his/her 18th birthday).
Fixed Trust: A Fixed Trust can either be a Trust where the capital is held on Trust for the lifetime of the beneficiary or in the alternative for a period of years until the beneficiary attains a specified age. The income from the Trust is paid out to the beneficiary during the fixed period. The Trust can also include provision where capital appointments from the Trust can be made by the Trustees. It is essential that the income generated by the capital held in a Fixed Trust is paid out annually to the beneficiaries. Otherwise, it is treated as Discretionary Trust.
Discretionary Trust: A Discretionary Trust is a Trust where the beneficiaries and/or their entitlements to the Trust Fund are not fixed but are determined by the criteria set out in the Trust Instrument by the Settlor of the Trust, or if created by Will, by the Testator or Testatrix. It is usual for the Testator or Testatrix to leave a Letter of Wishes to his or her Trustees to guide them as to their wishes are in the exercise of their discretion. A discretionary Trust allows the trustees to address situations as they arise and which cannot be foreseen at the time that the trust was created.
A Discretionary Trust is a flexible vehicle by which provision can be made for the needs of beneficiaries. It is very commonly utilised where the testator has children who are still minors. It allows the Trustees to vary and adapt to the circumstances that present, from time to time, so that they can act in the best interest of the beneficiaries as the settlor/Testator would have done. However, a Discretionary Trust is subject to Discretionary Trust tax (this is a tax in addition to Capital Acquisitions Tax) in certain circumstances.
Protective Trust: A Protective Trust is a trust in which a life interest is left to an object of the trust with power to the trustees to appoint capital to the beneficiary in certain circumstances. However, on the happening of a certain event(s) as provided for in the Trust Deed, the trust can convert to a discretionary trust.
Trust Wills: Trust Wills can provide for any of the above-mentioned trusts as the circumstances of the Testator requires.
Variation of Trusts: Variation of Trusts is possible in certain circumstances under the terms of the Land and Conveyancing Law Reform Act 2009. Provision can also be incorporated into the trust will for some variation of the terms of the trust within the powers granted by the testator to the trustees in the trust will.

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Why Choose Lavelle Partners for Wills & Trust Wills?

Our award-winning Wills, Probate & Estate Planning Team led by Caitriona Gahan are highly experienced in advising families and professionals on estate planning, will structuring, administration of trusts, capital acquisitions tax and discretionary trust tax issues.
We are extremely well-versed in advising on Wills and all types of Trust Wills.
We are known for our dedication and our compassionate, empathetic approach to clients in dealing with sensitive private matters such as Wills and Probate.
Lavelle Partners won Probate Law Firm / Team / Lawyer of the Year at the Irish Law Awards 2024, as a testament to the calibre of our expertise and first-rate client service.
As a full-service law firm, our clients benefit from our combined legal expertise in a number of related specialist areas including Corporate & M&A, Employment, Property and Litigation & Dispute Resolution.