The following information is taken from a talk by Brian Spierin, Senior Counsel, 21 Feb. 2007 – N.B. These notes are not intended to be definitive of the full legal position and should be read as a guide only. Full legal and, where necessary, financial and taxation advise should be sought when making a will.
Persons who will administer your estate after your death
Persons who will administer any trust you set up. Executors are usually your trustees but it is not essential, they can be different people.
Persons appointed by a will to be the guardian of a child. (Married parents are automatically the legal guardians of the child). In case of child or a non-married couple, mother has automatic guardianship, father has to apply to Court for guardianship.
Can have the same person as Executer and or Trustees if so wished.
With regard to children with and without Special Needs:
The most usual way is to set up some form of Trust in the will. If the Special Needs child predeceases, you can provide for that trust to be divided equally among your other children.
Simple / Bare Trust
“I leave all my estate with the benefit of the trustees to my son……..” the property is held by the trustees and must be applied for the benefit of the child, when the child attains 18 and if he or she has fully capacity can call on trustees to pass property to him, trustees have no discretion.
Fully Secret Trusts
The existence of the trust and the beneficiary not appear in the will.
“I leave all my property to my son…….”, but son is actually holding the property on trust for his special needs sibling. The names son must know this and agree to it. This notification and agreement is best recorded in writing but will not form part of the will.
Half Secret Trusts
“I leave all my property to my daughter x on trust.” The trust itself is revealed but the beneficiary is not.
Discretionary Trusts
You are giving a discretion to the trustees.
In respect of someone with full age and no special needs there is a 6% tax charge plus a 1% annual charge hereafter. (This is a separate tax to inheritance tax). If they are a minor or have an intellectual special need there is an exemption from this tax.
Caution: The beneficiaries of this trust are defined in the will but there is usually a tendency to define the beneficiaries widely so as to give it more flexibility. However, you need to be more specific when special needs children are involved eg. naming the children, do not include their spouses or issue.
This needs to be discussed with Solicitor in the light of the special needs.
Benefits may be lost if a child comes into money. However, this is not a reason not to provide for your child – Section 117.
Bear in mind also that in the fullness of time the child with Special Needs may need residential care in the future so provision should be adequate to allow for this where your means allow.
“Wills, Irish Precedence and Drafting” by Brian Spierin – can be obtained in the library or Hodges Fidges, Waterstones.
Proudly built by Dean