What Happens if You Don’t Make a Will?

This article is one of a series and while it can be read on its own, it is designed to be read along with the two articles “Why Make a Will” and “What Should You Consider When Making a Will?”   

Introduction

If you don’t make a will, the State makes all the decisions for you.  Instead of you choosing who gets what and who manages your affairs, the State steps in and divides everything (your assets) between your family members. 

In legal terms, dying without a will is called dying Intestate. This means that the State decides on the division of your estate and, based on that, who manages your affairs after you die.

The law covering this is the Succession Act, 1965.  Although the law has been updated since this legislation was enacted, it obviously cannot take your personal wishes into account. You know - much better than any piece of legislation - how you would like your assets to be divided and who should be in charge of managing this process.

What Happens my Assets if I die Intestate?

If you die intestate – that is, without a valid will - the Succession Act of 1965 governs how your estate is distributed, depending on your closest surviving relatives. 

There are different rules for single people, with or without children, and married people with or without children.  Civil Partners have broadly the same rights as spouses. A person you are living with (your “cohabitant”) does not have the same rights as a spouse, but does have the right to sue your estate for provision.

For instance, if you die intestate as a single person without children, your estate goes to your parent or parents. If your parents died before you, it goes to your brothers and sisters. The children of a brother or sister who died before you take their late parent’s share. If all your brothers and sisters have died before you, your nephews and nieces share your estate equally.

In cases where a single person dies leaving children, the entire estate goes to the child or is divided equally among all the children. However, this presents a practical difficulty when the children are under the age of 18 and no trustees have been appointed to manage the estate on their behalf. The surviving parent must apply for the legal right to administer the estate, but complications arise if that parent is a cohabitant. In such cases, they may also bring a legal claim against the estate in their own right, creating a potential conflict of interest while also acting on behalf of the child. 

If you are married or in a Civil Partnership and die without children, your spouse or civil partner gets everything. If you are married or in a Civil Partnership with children, your spouse or civil partner gets 2/3rds and your children share the remaining 1/3^rd.  Once again, if any of your children are under 18, somebody has to mind their share for them.

Importantly, the legislation does not take into account the specific needs of your children or their life circumstances. The legislation operates on the principal of equality, but equal division does not always result in fairness, especially when children have special needs and specific circumstances. 

Who Takes Care of Things if I die Intestate?

As nobody has been appointed to manage your affairs, the legislation determines who takes on this role. It goes to the person/persons who are legally entitled to inherit your estate. 

• If you were married, your surviving spouse is the only person entitled to act, whether you leave children or not. 
• If you were widowed, or a widower, your children are equally entitled. 
• If you were a single person without children, your parent or parents act. This can sometimes cause difficulties. For example, your elderly parents may be left with the responsibility of managing your estate while grieving your loss. When there are no surviving parents, the role passes equally to your brothers and sisters. If none of your siblings are alive, your nephews and nieces are equally entitled to act. 

Summary

We would encourage everyone, particularly anyone with a child or children to make a will. Quite simply, by leaving a will you make all the necessary decisions. A will makes it much more straightforward to manage your affairs and you can take the needs of your family members into account.

Padraic Courtney is a Solicitor and Secretary to the Probate, Administration & Trusts Committee of the Law Society of Ireland. 

Disclaimer: Please note that this article is for general information purposes only and does not purport to be legal advice. While every care has been taken in its production, no legal responsibility or liability is accepted warranted or implied by the author, publishers or the Law Society of Ireland in respect of any errors, omissions or misstatement. Readers are advised to seek independent professional legal advice before acting on anything in this article.