‘My husband refuses to make a will. Will I lose our home if he dies?’
Q My husband and I are married 10 years and are in our late 50s. It’s a second marriage for both of us and he has one adult daughter from his previous marriage. When we got together, I moved into his home. I’m unable to work at present due to ill-health and my husband’s health isn’t great, either. It’s been making me think about my financial future. I’ve been asking my husband to make a will so that I will have our bank account and our home to rely on if anything happens to him. He refuses point blank to even discuss the subject. If he dies without a will, will I be able to access our assets?
Fidelma, Co Dublin
A I’ll deal with the joint bank account first. You need to contact your bank and check that the account is registered with both of you as “joint tenants”.
This means you would have an equal right to the account’s assets and would be afforded survivorship rights when your husband dies, which means you would be able to easily access the account.
You may not be registered as a joint tenant if he had the bank account first and simply added your name to it for convenience.
It appears that the house is in your husband’s sole name. If he died without a will, the rules of intestacy would apply, and you would be entitled to two-thirds of the house, while your husband’s adult child would be entitled to one-third.
This would not be a good position to find yourself in and you’d be very vulnerable in this scenario. Your husband’s child could look for her share immediately and you would have to find the funds to buy her out.
Your husband urgently needs to make a will to deal with the house. But more than likely he’s anxious to ensure he’s being fair to both you and his daughter. He may prefer to leave you a lifetime interest in the property, with the house going to his daughter upon your death. It would be preferable for you to own the house outright, but all of this should be discussed.
You could make mutual wills so that on the death of the survivor, the house would pass to your husband’s child.
Ideally, the house should be transferred into joint names during your lifetimes. That way, if anything happened to your husband, the home would automatically pass to you as the surviving joint tenant and you would not need to go through probate. In addition, it’s much more difficult to legally challenge a lifetime transfer than a will.
‘Why is it so difficult for us to open a bank account for my brother’s trust?’
Q My parents left a quarter of their estate for the welfare of my brother, who has special needs. They used a simple will trust with no restrictions. My two siblings and I are trustees. My brother doesn’t have any immediate need for the funds as he is very well cared for and has his own bank account.
Our intention is to keep the trust funds in case of any unexpected development in his life, but also to provide treats such as holidays.
I approached AIB more than a year ago to open a workable account (for the trust). As trustees, we’ve been through hell and back with form-signing and obtaining witness’ signatures on several types of accounts, only to be told it’s not the right type for this purpose. My siblings live in different countries so we need an account that can be administered online but this does not appear to be possible. I’m pretty sure my parents’ intention was not to burden us with this problem. Our situation surely cannot be unique?
Monica, Co Cork
A trust is very useful for a family member with special needs as it protects their assets and, if the trust is discretionary, it’s generally not taken into account for means-tested benefits. But in my experience, all banks make it challenging to open a bank account for a trust.
A trust is a separate entity to both the ultimate beneficiary and to you and your two siblings as trustees. An application should be made to the Revenue Commissioners to register the trust and obtain a PPS number. In addition, anti-money laundering legislation requires details of the trust and its beneficial owner to be given to the Central Register of Beneficial Ownership of Trusts, which Revenue is responsible for.
After that, an account can be set up. My experience is that the banks’ legal teams are involved in checking the terms of the trust and, in general, the account-opening procedure is more onerous. Even though your siblings live abroad, all trustees would have to come together and arrange a meeting with your bank branch. You’d have to bring a certified copy of the Deed of Trust (the will), identification and address verification, and then complete all account-opening forms on site.
The above is the preferable and correct option. However, some families decide that if the amount held in trust is small, the siblings will just open a regular account in their names without explicit reference to the trust but still abiding by the trust’s terms.
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