Last Will

John_Snow

Hi,

I'm really hoping someone could help me on this one.

My parents never made a will and everything is currently in my fathers name, house and some money.

Unfortunately he was diagnosed with alzheimer's disease a few months ago and probably wont ever be able to make a will?

My mother is battling cancer at the moment and its not looking good for her at all and she has asked me to look into it for her.

My brother suggested transferring everything into her name and that she make a will but time is not on our side and I'm not sure if my father can even do it now that he has alzheimers?

any help or advice would be greatly appreciated,
many thanks.

seamus

Talk to a solicitor. If everything was jointly in your parents' names, it would be easier because your mother could just transfer everything to herself and then it would pass on normally.

If your father is not yet incapacitated, then you have time. Making a will takes a couple of hours. Transferring assets doesn't take that long either. But if you have the will sorted, then that's the hard bit over.
One of you can also be granted his enduring power of attorney, which functionally gives you the power to make decision on his behalf, once he becomes incapacitated. This will allow you to manage his money, etc.

If he is already too ill to make these decisions, then you will need to have your father made a ward of the court. After that point the court makes the decision on how affairs are managed in his best interests. This would include the best interests of your mother too.

So yeah, go speak to a solicitor.

Peregrinus

I am sorry to hear of your situation. The legal complications can only add to what must already be a burden of grief and responsibility.

If your father has Alzheimer's it may be past the point where he can make a will, or transfer his property, or execute an enduring power of attorney authorising someone else (like you) to deal with his property on his behalf. If he were to do anything of the kind I think you would want to get written medical opinion that he was mentally competent, so talk to his doctors and see if they think he is competent and would be willing to say so in writing.

If the answer is "no, he can't do this" then I think you need advice on your options for managing his affairs. If he is currently living at home and your mother is his primary carer, that's obviously not a situation that will be sustainable for very long. I'd start with somewhere like the Alzheimer Society of Ireland who may be able to put you in touch with someone who can advise on the practical and legal aspects of the situation. I think you and your mother need to work out first of all what practical arrangements will be best for his welfare and your mother's, and then when you know what you are trying to achieve you can tackle the legal obstacles. There is a legal process known as wardship under which you can get a court order giving you control of your father's assets, but this is slow and expensive and if you can acheive your objectives without it you would much rather do so.

John_Snow

thank you both,

I spoke with my mother again today and we're both going to speak with his doctor and solicitor and go from there, it's early days with his condition so who knows!

my mother knows whats around the corner because of her cancer diagnosis and this is why she is anxious to get things sorted but it turns out that the house is in both their names after all, crossed wires on her behalf!

if a will was never made and and my father passes long after my mother I presume that it will automatically come to me and my brother, I imagine it would have to go trough the state and probably take time and be expensive?

sorry if I'm asking stupid questions but I've never done this before and its falling on my shoulders been the eldest son, I'd rather walk in to a solicitors office with an idea on what I need to do,

thanks again,

P. Breathnach

You have two major concerns - your mother and your father. That's more than enough.

If it is the intention that their property eventually go to you and your brother (and there are only the two of you) then a will is not essential. The estate would be classed as intestsate; you and/or your brother can apply for "Letters of Administration"; you can then sell or otherwise dispose of the assets, pay any debts, and divide the estate equally between you.

There is very little difference between that process and executing a will that leaves everything to be divided equally between you.

Perhaps the easiest thing is to let matters take their own course.

Peregrinus

If your father is in a position to make decisions about his affairs, then let him talk to his solicitor about executing an enduring power of attorney. That doesn't change anything immediately, but it gives you (or whoever he nominates) the power to make decisions about his property, etc, as and when the need arises. It's pretty flexible.

Also, yes, if he can he should make a will. One of the things youcan't do on his behalf under an enduring power of attorney is make a will for him, so either he makes one while he still can, or he dies without a will. It's not a huge deal, but if there is a will and you are named as executor, you can move that little bit faster to deal with his affairs than if he dies without a will, and all other things being equal you'd rather have a will made than not.

But it's not a show-stopper, and if your father is stressed by his situation and his capacity for making decisions is limited athen focus on the enduring power of attorney.

John_Snow

last question on this one,

my mother was told by her sister that she is in her will but what happens when my mother passes?

many thanks

Victor

John_Snow wrote: »

my mother was told by her sister that she is in her will but what happens when my mother passes?

In the matter of you aunt's estate:
* If you mother passes first, then it is a matter for her aunt's will as to how things are dealt with, defaulting to the Succession Act if necessary (you don't say if the aunt has other family).
* If the aunt passes first, then it is again a matter for the aunt's will as to how things are dealt with. Presumably your mother would inherit whatever she is due. If you mother then passes, it would be down to your mother's will, defaulting to the Succession Act if necessary.

Some wills are written such that if X dies within 30 days of Y, then paragraph Z applies. This would avoid a situation where two amounts of CAT apply (CAT doesn't apply between spouses and exemption limits apply). http://www.revenue.ie/en/gains-gifts-and-inheritance/cat-thresholds-rates-and-aggregation-rules/index.aspx - the solicitor can advise.

You could raise matters with your aunt, but I'm not sure what the polite way to do that is. Your mother may be hte best person to do it.

Note that a €3,000 per year exemption limit applies. If there are substantial assets, each of the older people could pass this amount on to any minor children in a quite efficient manner.