A presentation by Brendan Allen Scarton House,

Transcript:A presentation by Brendan Allen Scarton House,:
A presentation by Brendan Allen Scarton House, Priory Court, Kildare, Co. Kildare PHONE: 045 530777 087 236 9920 EMAIL: brendan.allen@okellysutton.ie FOR INFORMATION No action should be taken without consulting the detailed legislation Always seek professional advice No responsibility for loss occasioned to any person acting or refraining from action as a result of the material contained in this presentation can be accepted by this firm. 2 Estate planning Make A Will • Without a will the division of the estate is determined by the Succession Act Where a person dies without a Will the division of their estate is determined by Succession Act provisions known as intestacy. There is legal right share of a spouse (one third/one half of estate) and the “moral duty” towards children. • Under Section 117 of the Succession Act, a child can potentially take an action against the estate of the deceased parent on the basis that they have not been properly provided for by their parent in accordance with their parent’s means. • Consider assets in other jurisdictions as Irish law may not apply 3 Section 117 Section 117 – often farm/family business cases Frequently one favoured successor What is available for the other children Perception of value often diverges from reality Successor often instrumental in making a will Undue influence/too close to the process Proof of Independence of decision and capacity of the testator 4 Consider using trusts •Trustee is nominal owner of trust assets, provided by settlor for beneficiaries •Trustee has an independent function with accountability Considerations: •Who will be the trustee or trustees? Choose carefully for this onerous task. •What assets will be transferred to trust? Any transfer may have tax implications. Is it affordable? •When will the assets be transferred to trust? During the settlor’s lifetime or by will Types of Trust 3 types Bare trust: •Trustee is owner of trust assets provided by settlor for settlor’s benefit can be implied or in writing •No protection from settlor’s creditors •Settlor is the beneficial owner Life interest trust: •Assets transferred to trustee to hold for settlor for life and on settlor’s death for other beneficiaries •Settlor has right to income for life •Settlor’s creditors could claim that income •Protection for capital provided settlor solvent when trust created and not done to defeat creditors Discretionary trust: Trustee is owner of trust assets provided by settlor to apply income/capital or both for benefit