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 Charity 2018  

Frequently Asked Questions about Wills & Probate

Q. Why should I make a Will?
A. By making a will you control who it is that benefits when you die. If you do not make a will, the intestacy rules will apply. These will decide who benefits from your death. So if you don't make a will there is the strong possibility that a relative that you don't get along with will be equally entitled to take a share in your estate as your favourite brother or sister.

In addition, by making a will you decide who it is that is responsible for looking after your affairs. This can avoid unnecessary conflict amongst family members. Finally, from a practical point of view, it is usually much easier to deal with a testate estate. There is not as much paperwork required as there is when you are dealing with an intestate estate.

Q. Once I have made my Will can I change it?
A. Yes, you can change your will at any time. You can do it in two ways, by adding a codicil (which is an addition to the existing will), or by revoking your previous will and making a fresh one. At Malcomson Law we recommend our clients to make a fresh will rather than codicils, as it cuts down the risk of the codicil being mislaid, and your final wishes not being carried out.


Q. How often should I review my Will?
A. There is no hard and fast rule on this one. We recommend that a will should be reviewed annually, in particular after the Government's Budget, to ensure that any tax minimising devices in the will are still effective. If you have experienced any life changing events, such as buying a house or the birth of child, you should check your will to make sure it still meets your needs.


If you get married, this invalidates a will unless the will was made in contemplation of the marriage. So if you have gotten married recently, it would be advisable to make a fresh will.

Q. Who should I appoint as Executor?
A. You should appoint somebody who has common sense and who can cope with pressure. It should ideally be somebody who is young and healthy (for obvious reasons there is very little sense in appointing an elderly person as executor ). It is also a good idea to appoint somebody who is living in Ireland as it can lead to delays sending paperwork abroad for signing.

Q. How many Executors should I appoint?
A. We normally advise people to appoint at least two executors in case one person can't act, and not more than three as otherwise it becomes very difficult getting paperwork signed by all concerned.

Q. Should I specify my Funeral Arrangements in my Will?

A. The short answer here is no. Usually a funeral has already taken place before a will is read, and at the risk of sounding flippant, it can be quite embarrassing for an executor to read in a will that the Deceased wished to be cremated and their ashes scattered off Howth Head, when the Deceased has already been buried in Glasnevin Cemetery. The wisest course is to make your wishes known to your nearest and dearest.


Q. Can I not just use the pre-printed will forms that you can buy in the Shops?
A. Yes, you can. However, in the majority of the cases, these are queried by the Probate Office as the layout is incorrect. These forms are short, and because you are limited by space, you may not be dealing with your affairs fully. Making a will has very wide ranging consequences and you should be fully advised before taking such a step.

Q. A relative has just died and I am his Executor. What should I do?
A. At Malcomson Law we can help you every step of the way. The first thing to do is to contact us for an appointment to come and discuss matters. We will explain to you the steps involved. When calling to office for the first consultation, you should bring the following:


The original will if it is not already held by Malcomson Law;
A copy of the deceased's death certificate if available;
If possible, a list of the deceased's assets, ie details of bank accounts, insurance policies etc.;
Details of the deceased's PPS (RSI) number;
Addresses of the other beneficiaries (if any);
Details of funeral expenses and any other liabilities attaching to the estate.


Quite often the hardest part of administering an estate is gathering together all the information and the assets. It makes the process much quicker if we are furnished with as much information as possible at the outset.


Q. Is it always necessary to take out a grant of probate?
A. It is not always necessary to take out a grant of probate. At Malcomson Law we can advise you fully as to whether it is necessary to take out a grant or not.


Frequently Asked Questions about Employment Law

Q. Am I obliged to give my employee a Contract of Employment?

A. Anyone who works for an employer for a wage has a Contract of Employment whether it is written or not.


The Terms of Employment (Information) Acts 1994 and 2001 provide that an employer must provide an employee with a written statement of certain terms of employment no later than two months after the commencement of employment. For more information on these employment law requirements please contact the Malcomson Law employment team who will be pleased to advise you on your existing Contract of Employment or to draft a Contract that will suit your situation.


Q. I employ young people to work in my business during their summer holidays from school and at the weekends. Is this legal?

A. The employment of people under the age of 18 is governed by the Young Persons (Employment) Act 1996. The legislation generally prohibits the employment of children under 16. However a child over 14 may be permitted to do some light work during the school holidays provided it is not harmful to health development or schooling.


A child over 15 may also do such work for up to eight hours a week during school term. A young person aged 16 or 17 may not work for more than 8 hours a day, and the maximum hours that person may work in a week is 40 hours.


Q. I am looking after a sick relative. Am I entitled to take leave from work for this purpose?

A. Yes, under the Carers Leave Act, 2001 you may be entitled to unpaid leave subject to a maximum of 65 weeks in respect of any one care-recipient. For more information on what is covered by the Act please contact the Malcomson Law employment team.

Q. I have been told that I am no longer entitled to smoke in the staff canteen. I have being smoking there for the last 30 years. What are my rights?

A. On 29 March, 2004 the workplace smoking ban introduced by the Public Health (Tobacco) (Amendment) Act 2004 came into effect. A workplace is defined under the Act as "any place, land or other location at, in, upon or near which, work is carried on, whether occasionally or otherwise".


If you continue to smoke in your workplace then you may be liable on summary conviction, to a fine of up to €3,000 and/or up to 3 months imprisonment and on indictment, a fine of up to €125,000 and/or up to 2 years imprisonment. If you are an employer in charge of that workplace and you facilitate the breach of the ban you may also be held accountable.


Q. I am not being paid the minimum wage. As I work on a part time basis, what are my entitlements to the minimum wage?

A. The National Minimum Wage Act 2000 applies to all employees, including part-time. Since 01 January 2007, the National Minimum hourly wage is €8.30 gross for an experienced adult worker. This will be increased to €8.65 per hour from 01 July 2007The Minimum Wage Act provides the following sub-minimum rates.


Sub-minimum Wage

  • An employee who is under 18 is entitled to €5.81 per hour (this is 70% of the minimum wage)
  • An employee who is in the first year of employment since the age of 18 is entitled to €6.64 per hour (80% of minimum wage)
  • An employee who is in the second year of employment since the date of first employment over the age of 18 is entitled to €7.47 per hour (90% of the minimum wage)

Q. I am buying a business. Do I have any responsibility towards the existing employees?

A. It is important when purchasing a business to be fully informed of all matter in relation to the employees of that business. An EU Directive became a part of Irish law by virtue of the European Communities(Safeguarding of Employees' Rights on Transfer of Undertakings) Regulations 1980 (SI 306/19800('the Regulations')


Regulation 3 of this Directive provides 'The rights and obligations of the transferor arising from the contract of employment or from an employment relationship existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee'.


When you are acquiring a Business the employment team at Malcomson Law want to ensure that you are not acquiring more than you bargained for.


Q. My Partner has just had a baby. Am I entitled to take leave from work?

A. If you are the natural or adoptive parent of a child, you may be entitled to a period of fourteen weeks parental leave to enable you to take care of the child under the Parental Leave Act.


In order to qualify, an employee must have one year's continuous service with his/her current employer. Such an employee is entitled to parental leave for each and every child of which that employee is the natural or adoptive parent. If an employee as the natural parent is availing of this leave that parent must take such leave before the child reaches eight years of age.


If a child was adopted between the age of six and eight, leave in respect of that child may be taken up to two years after the date of the adoption order.


In the case of a child with a disability leave may be taken up to 16 years of age. In addition an extension may also be allowed where illness or other incapacity prevented the employee taking the leave within the normal period.


Q. I returned to work recently after taking Maternity Leave. I was disappointed when I was told that I would not be doing the same job as I was doing prior to going on maternity leave. Can my employer do this?

A. The main legislation covering this position is the Maternity Protection Act, 1994. Section 27 of the act relates to this issue and it provides that on returning to work after a maternity leave an employee has a right to suitable alternative work if for some reason it is no longer feasible for you to return to your former position.


Therefore, it may be the case that your employer does not have to offer you your original job back. If it is not reasonably practical for your employer to offer you your original job back, then you are entitled to be offered suitable alternative employment under a new Contract of Employment. The new position offered to you should be suitable and appropriate


Frequently Asked Questions about Property Law

Q. Is the booking deposit which I pay to an auctioneer refundable?

A. Yes, booking deposits are fully refundable until such time as a binding contract for sale comes into existence. If you change your mind about buying a property before signing contracts for sale you are automatically entitled to a refund of your booking deposit.


Q. When does a contract for sale become binding?

A. A contract for sale becomes binding when it has been executed by both parties, exchanged and some form of deposit paid.


Q. When buying a second hand house, do I still need to carry out a survey even though my Bank's valuer has already looked at the property?

A. Yes, we highly recommend that you carry out a survey by a structural engineer or surveyor. When you buy a second-hand house the principle of "Buyer Beware" applies. This means that you are buying the property warts and all. A valuer for the Bank will carry out a very superficial inspection of the property merely to ascertain the market value of the property. They are not in any way certifying the property to be structurally sound. It is therefore very important to arrange for a comprehensive survey of the property so that you are fully aware of the state of repair of the property.


Q. When do I have to pay stamp duty?

A. Stamp duty is payable within 30 days of completing your purchase. If the stamp duty payable is not paid within the 30 day period, substantial penalties may be imposed by the Revenue Commissioners.


Q. How long will the conveyancing transaction take?

A. Unfortunately this is one question that cannot be answered with any degree of accuracy, as each transaction is unique. This depends upon how organised both the Vendors and Purchasers are and how quickly each want to complete. The most common reason for a transaction not completing on time is a delay in the issue of a loan cheque.


Q. How long does it take for a loan cheque to issue?

A. Most lending institutions issue loan cheques or funds by Electronic Fund Transfer within five working days of receiving a cheque request provided all formalities such as insurance have been complied with. If all formalities have not been complied with, then there will be a delay in the issue of your loan cheque.


It is always recommended that when asking your solicitor to request your loan cheque that you contact your mortgage adviser/broker to ensure that all the conditions of your loan approval have been complied with.


Q. What if I decide to change my mind and not buy a property after I have signed contracts?

A. Never a good idea! You are essentially throwing yourself on the mercy of the Vendor. If the Vendor is not prepared to let you walk away from the transaction, at the very least you run the risk of losing your deposit, but also may be forced by the courts to go ahead and buy the property by way of an order for specific performance.


Furthermore, if the vendor on the re-sale of a property gets a lower price than contract price to you, you may be liable to pay the difference between both contracts. The deposit which was forfeited acts as a credit.

If you have any reservations about purchasing a property, don't sign the contract.


Q. What is the difference between a joint tenancy and a tenancy in common?

A. Ownership of a property is often described as either being a joint tenancy or a tenancy in common. A joint tenancy is where a property is owned collectively, and is not split up into separate shares. If one of the joint tenants dies, the other surviving Joint Tenant(s) take the ownership of the property automatically by way of survivorship. This type of ownership is most commonly held between husband and wife.


Tenancy in common on the other hand involves a division of the ownership of the property into separate and distinct shares. If one of the tenants in common dies, his share remains intact and passes under the terms of his will and not by way of survivorship. This type of ownership is most commonly found in a business context.


Q. Who should I get to do a snag list inspection?

A. There is no hard and fast rule about this. An architect/Engineer is the obvious choice. However, another builder is often a good alternative as they know where to look for any corners that have been cut. A snag list does not follow any set format. All that is required is that the information be set out clearly so that the Builders can follow what needs to be done.

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