The law states that if you are married but have no children, then your spouse gets all of your assets.
Many people are not aware that if you do not make a Will and you are married and have children, then your spouse in entitled to two thirds of your assets only and your children are entitled to one third in equal shares between them, even if you may have intended leaving everything to your spouse.
However, if there is no will in place, your children will have a legal entitlement to a one third share of all of your assets.
This can cause serious difficulties in relation to farming assets especially where any of the children are minors (under 18) or indeed if the children can’t agree as to what should happen to their one third share.
Not having a Will in place could, in these circumstances, end up having the effect that a part of the farm/farming assets must be sold. If you want to have your say with regard to your assets in your sole name after you pass, then it is imperative that you make a will.
In circumstances where you have minor children you should think about a will which deals with the situation where both you and your spouse/partner die at the same time.
You will need to think about who you might like to appoint as Executor/Trustees of your estate, who will take care of the legal side of things to include all paperwork and also who to appoint as guardians of your minor children.
So even if you are very young, once you have any assets in your name and once you have children, you should always make a will to deal with the unthinkable. You can at any time after making a Will change your will in order to deal with changing family or financial circumstances.
Please do not hesitate to contact us in order to discuss the best option for you and your family.
Although a Will can take care of your affairs after you pass away, there is also another situation that many people fail to cater for and that is where one no longer has the mental capacity to look after themselves, whether caused by accident or illness.
Many farmers are asset rich and cash poor. This may leave loved ones in a situation where they cannot liquidate assets in order to provide for your care, if necessary, as nobody has the authority to deal with your affairs and sign legal documents on your behalf. Even if assets are in joint names with a spouse, this will still not allow your spouse to liquidate those assets.
However, there are legal ways in which to deal with this type of a situation. There is a legal document that can be put in place by you called an Enduring Power of Attorney which has safeguards within which ensure that the power that you give to your nominated Attorney cannot be used without legitimate reasons which must be verified by professionals.
With this document you appoint somebody that you trust implicitly as your Attorney. The obvious choice for an Attorney will depend on each person’s own circumstances but is often a spouse or son or daughter. The appointed Attorney will look after your affairs if you become incapable of doing so.
As part of this process, you also nominate two people who are informed at the beginning of the process that you have signed this Enduring Power of Attorney. These two people are known as “Notice Parties”. Your doctor and solicitor must also confirm in writing that you know exactly what you are signing at the time and have the mental capacity to do so.
This is all that happens while you continue to be capable of looking after your own affairs. If you get ill or are injured into the future and are no longer capable of looking after your affairs, then your Attorney must register the Enduring Power of Attorney with the High Court and the two above mentioned Notice Parties are also informed immediately. The Notice Parties must agree that you are no longer able to take care of your own affairs and if they do not then they can object on your behalf.
The only other way that you can have your affairs dealt with once you become incapacitated is the Ward of Court system. The Enduring Power of Attorney system is a much better system than being made a Ward of Court which is an extreme step. So signing an Enduring Power of Attorney just means that you are ensuring that you are in control of your own destiny and it makes the process easier on your loved ones should the need arise.