The Society of Trust and Estate Practitioners (STEP) is an international society of experts in inheritance and succession planning, the administration of trusts and estates and associated taxes. 

STEP has published a short leaflet that provides a quick explanation of what the association does and outlines the role, experience and qualifications of its members and the ways in which they can help families plan for their futures, from drafting a will to advising on issues concerning foreign property, the protection of the vulnerable, family farms and businesses and the various taxes associated with succession planning. 

The leaflet is available as a pdf below.

Ken Enright of Thomas W Enright Solicitors is a member of STEP and a Trust and Estate Practitioner. A large part of the work he does relates to the provision of advice to private clients, business people and farmers in connection with lifetime and succession planning, the making of wills, the creation of will trusts and other estate planning structures. He also deals with post-death matters and, for almost twenty years, has been involved on a daily basis with the administration of estates, advising executors and administrators of their rights, powers and obligations.

​For this edition of our blog we've posted a short(ish) video guide called 'Some things you need to know when you are making a will'.

The video outlines the main issues you and your solicitor will need to discuss before you make a will.

It explains the role of executors and trustees and the appointment of guardians as well as giving a quick overview of the various restrictions on the freedom of testation, the legal requirements for a valid will as set out in the Succession Act 1965 and the various reliefs and exemptions from inheritance tax that are available. 

​We hope you find it helpful.

In Irish law, if the surviving co-owner has not contributed to the joint account, the presumption is that a ‘resulting trust’ exists and the survivor holds the funds on trust for the deceased’s estate and not as beneficial owner.
 
This default position can be rebutted in certain circumstances.
 
For example:
 
1. If there is clear evidence that the account was put into joint names with the intention of making a gift to the surviving co-owner, then the surviving co-owner will be entitled to the funds.
 
2. If the surviving co-owner is the wife or child of a deceased (male) co-owner, then the “presumption of advancement” will displace the presumption of a resulting trust and the funds will advance to the wife or child, unless there is evidence that this had not been the intention of the deceased.
 
In summary, if no consideration was paid by the survivor, if there is no evidence of intention to make a gift, and if the surviving co-owner is not the wife or child of the deceased, then the survivor holds the funds on trust for the estate. This means that the funds will be distributed in accordance with the terms of the will of the deceased or, if the deceased has not made a will, in accordance with the laws of intestacy. 

It is quite common in Ireland for a parent - often an elderly or infirm widow or widower - to add the name of their son or daughter to their bank account as a joint owner or co-signatory.
 
Often, this is done “for convenience”, with the intention of enabling the son or daughter to operate the account for the benefit of their parent: to pay, for example, various day-to-day expenses on the parent’s behalf.
 
In such circumstances, the funds remain the property of the parent and, on the death of the parent, form part of the parent’s estate. The surviving joint account holder is said to hold the funds on a “resulting trust” for the estate. In other words, no beneficial ownership passes to the surviving joint account holder at any time.
 
Sometimes, the parent might wish for the child to take a benefit from the account, either at the time the account is put into joint names or, more often, on the parent’s death. There might, in other words, be an intention on the part of the parent to make a gift to the child.
 
A parent might also intend for both situations to apply successively. While they are alive, the parent might want the child to operate the account for the parent’s benefit and convenience but intend, at the same time, that the child should succeed to the ownership of the account after the parent’s death.

If another person’s name is to be added to an account for convenience, then the account mandate signed with the bank should make this explicit. It is always preferable in such circumstances that the new person’s name be applied to the account as a signatory rather than as a joint owner of the account. This removes any doubt as to the intentions of the parties.
 
In all cases, whether the new name is to added with the intention of conferring a benefit or merely for conveience, it is extremely important that the older person be afforded the opportunity to receive independent legal advice.  This will ensure that they fully understand the effect of putting another name on their account and that they are not subject to any undue influence. Their intentions should be made clear to all parties - including the bank - written down, and acted upon.
 
The account mandate should be reviewed and signed by all account holders and copies retained. 

A resulting trust - also called an implied trust - is a trust that arises by operation of law based on the unexpressed but presumed intention of the parties. Such a trust exists when an interest in property has been transferred from one person to another but the beneficial interest returns - or results - to the transferor.
 
As a general principle of law, where the legal ownership of a property is transferred from one person to another and the transferee (the person who receives the property) gives no consideration (or payment) for it, then the transferee is presumed to hold the property on a resulting trust for the transferor.

​The transferee can rebut this presumption by providing evidence of the transferor’s intention to make a gift.
 
Alternatively, and to similar effect, the presumption of advancement might apply. Whether it does or not will depend on the relationship of the people involved.

​The presumption of advancement is based on the idea that when one person stands in a particular relationship to another, particular obligations ensue; and that when, in the context of such a relationship, property is transferred from one to the other, there is a presumption that the transferor intended to benefit the transferee absolutely.
 
In a situation where funds are placed by one person into a joint account with another, the doctrine operates to presume that the parties hold the beneficial interest jointly and, ultimately, for the benefit of the survivor.
 
The presumption of advancement, like the presumption of a resulting trust, can be rebutted by contrary evidence. In other words, if there is evidence that an advancement or gift was not intended, this evidence will override the presumption of advancement and the default position, that of the resulting trust, will apply.