Offaly Solicitors and Notary Public, Thomas W Enright Solicitors: Expert Legal Advice
Offaly Solicitors and Notary Public, Thomas W Enright Solicitors: Expert Legal Advice
  • Home
  • Contact
  • Services
    • Wills, Probate and Estate Planning
    • Accident and Personal Injury Claims
    • Farm Transfers and Agricultural Law
    • Family Law
    • Commercial Law
  • Solicitors Conveyancing Quote
    • Free Online No Obligation Quote Property Sale
    • Free Online No Obligation Quote Property Purchase
  • Notary Public
  • About us
  • Blog
  • Home
  • Contact
  • Services
    • Wills, Probate and Estate Planning
    • Accident and Personal Injury Claims
    • Farm Transfers and Agricultural Law
    • Family Law
    • Commercial Law
  • Solicitors Conveyancing Quote
    • Free Online No Obligation Quote Property Sale
    • Free Online No Obligation Quote Property Purchase
  • Notary Public
  • About us
  • Blog

thomas w. enright solicitors
​
​blog

HOW MUCH COMPENSATION DO YOU GET FOR A HEAD INJURY?

21/8/2019

0 Comments

 
Picture
The loss of sight in one eye can merit an award of up to €138,000 according to the Book of Quantum


If you have suffered a head or facial injury and you think you are entitled to compensation, we at Thomas W Enright Solicitors can submit an application for compensation on your behalf to the Personal Injuries Assessment Board, now known as the Injuries Board.

If the person or organisation you are claiming against agrees to the assessment of your claim, the Injuries Board will assess the amount of compensation due to you based on the report of your doctor and according to what is called the Book of Quantum.

We will guide you through the process from start to finish and deal on your behalf with the Injuries Board as well as your doctors and other professionals as might be required. We will explain the procedure to you and try to make it as simple and straightforward as possible. When your claim has been assessed we will provide you with advice in order to help you decide on whether or not to accept the compensation offered.

If you have suffered a head injury - which includes a concussion and a skull fracture - and no other part of the body is affected, the level of compensation you will receive will depend on the severity of the injury.

The level of compensation for an eye injury is determined on the basis of how the injury has affected one's sight and whether it involves one or both eyes. For the total loss of sight in one eye the guideline compensation figure is €138,000.

For loss of hearing, compensation is determined according to the formula in the so-called Green Book.

Compensation for dental injuries takes into account the number of teeth affected, whether they are permanent or milk teeth and whether they are lost or damaged.

For other head and facial injuries, severity is divided into the following broad ranges to reflect the degree of disruption to your lifestyle and the pain and permanency of your condition:

• Minor
• Moderate
• Moderately severe
• Severe and Permanent

Read More
0 Comments

PASSING ON THE FAMILY FARM BY GIFT OR WILL : TAX, FAIR DEAL SCHEME, LEGAL COSTS AND OTHER CONSIDERATIONS

18/8/2019

0 Comments

 
Picture
Looking after the next generation.

CAPITAL ACQUISITIONS TAX (CAT) (applies to both gifts and inheritances)

1. Rates and Thresholds and dates for payment
 
Capital Acquisitions Tax will be charged a rate of 33% on the taxable value of the gift/inheritance. The taxable value is based on the market value of the assets transferred.
 
The person who receives the property (also called "the transferee" or, sometimes, "the beneficiary", "the successor" or "the disponee") is entitled to receive a certain value known as the “tax free threshold” free from CAT.  The threshold is based on the transferee’s relationship to the person who gives away the property or leaves it in their will (known as "the transferor" or "the disponer").
 
The current thresholds (post 12 October 2018) are set out here.

Read More
0 Comments

What is the Society of Trust and Estate Practitioners (STEP)

4/4/2018

0 Comments

 
Society of Trust and Estate Practitioners (STEP) logo
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.
0 Comments

Video - Making a Will

15/3/2018

0 Comments

 
Picture
​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.

Why make a will?

 When a loved one dies, things can be difficult for those they have left behind. Matters can be made that much easier if the deceased person has made a will setting out their wishes as to what is to happen to their property after their death.

If you die without having made a will then, essentially, the law makes a will for you and your estate will be divided according to what are called the "rules of intestacy". These are set out in Part VI of the Succession Act 1965.

If a person dies without having made a will, the distribution of their estate will depend on their civil or marital status and whether they have children, grandchildren or other issue. If they are not married or do not have a civil partner or issue then their estate will be distributed between their next of kin in accordance with the rules of succession set out by law.  

Briefly, if "an intestate" dies leaving a spouse and no children, then their spouse takes their entire estate.

If they die leaving a spouse and issue, their spouse takes two-thirds of their estate and their issue take one-third between them. If all the issue are in an equal degree of relationship to the deceased (e.g. if they are all children of the deceased) then they will share the one-third equally between them. If all the issue are not in an equal degree of relationship, the distribution will be what is called per stirpes. Say, for example, a deceased intestate husband and father had two sons and one daughter, the latter of whom died before him leaving her own children, then those children, the grandchildren of the deceased intestate, would take their late mother's share of their grandfather's estate between them, with the two surviving sons of the deceased intestate taking, as surviving children, the remainder of the one-third equally between them.

If the intestate dies leaving issue but no spouse then the whole estate is distributed between the issue, in equal shares if they are all in the same degree of relationship or, if not, per stirpes.

If there is no issue or spouse then the distribution depends on the degree of blood relationship.

All this shows that if there is no will, matters can become complicated very quickly. 

​If a person with, for example, a spouse and minor children dies without having made a will, the burden placed upon the surviving spouse is that much greater. One of the difficulties that frequently arises is that the surviving spouse can only deal in their own right with two-thirds of their late spouse's property;  the other third to which the infant children are entitled must be held in trust until the children reach the age of eighteen. Complications of this sort - and the additional costs and burdens associated with them - can be avoided by simply taking the time to make a will.

A will enables a person to deal with their succession in a planned way, taking account of the needs of their spouse and children and any other loved ones or next of kin. 

The will needs to express clearly the deceased person's intentions, it needs to observe the technical requirements of the Succession Act and it should take into account the various legislative restrictions on the the freedom of testation. It should also try to minimize tax liabilities.

In order to ensure that all these issues are properly considered, anyone making a will needs to consult a solicitor or, better still, a solicitor who is a member of the Society of Trust and Estate Practitioners, an international society of experts in inheritance and succession planning, the administration of trusts and estates, and associated taxes.


0 Comments

Basic Payment Scheme Transfer of Entitlements 2018 - New Rules for Inheritances

16/2/2018

0 Comments

 
Picture
Under the revised inheritance rules, the way entitlements are dealt with will depend on the date of death.

Inheritance of Entitlements 2018

The Department of Agriculture has recently published answers to a list of frequently asked questions about the transfer of entitlements under the Basic Payment Scheme 2018.

The full list of the department's FAQs and replies is published at the end of this post.

Included in the FAQs is the department’s interpretation and proposed implementation of Statutory Instrument No. 639 of 2017 which came into force on 21 November 2017 (see our blog post of 22 January 2018, Important Changes to European Union (Basic Payment Scheme Inheritance) Regulations 2017). 

How the department proposes to deal with the inheritance of entitlements following the new statutory instrument will depend on whether the owner of the entitlements died before or after 21 November 2017. 

​We have summarized the position below.

​Inheritance of Basic Payment Scheme entitlements for deaths after 21 November 2017

  • ​where the will does not specifically mention entitlements, the entitlements will transfer with the land unless there is a legal impediment preventing the transfer;

  • where the will does not specifically mention entitlements and lands are transferred to a number of beneficiaries, the entitlements will be transferred to the beneficiaries in proportion to the amount of land they each receive under the will. If they receive land in equal shares then they will receive an equal number of entitlements.
 
  • ​In all cases, where the will of the deceased bequeaths the entitlements to a particular person, the entitlements will be transferred to that person unless there is some legal impediment preventing it.

​Inheritance of Basic Payment Scheme entitlements for deaths before 21 November 2017

  • ​where the will does not specifically mention entitlements, the entitlements will form part of the residue of the estate and the residuary legatees will inherit them.

  • where the will does not specifically mention entitlements and there are farming and non-farming beneficiaries, the non-farming beneficiaries can do either of the following:

                  a) waive their rights and allow the farming beneficiary to receive the entitlements, or
                  b) apply for a 700 series herd number, take the entitlements and then transfer them to a third party
 
  • Again, in all cases, where the will of the deceased bequeaths the entitlements to a particular person, the entitlements will be transferred to that person unless there is some legal impediment preventing it.

 Department of Agriculture's Replies Frequently Asked Questions on the Basic Payment Scheme 2018


Read More
0 Comments

What happens to a joint account when one of the co-owners dies?

13/2/2018

0 Comments

 
Picture
The funds in a joint account do not automatically pass to the survivor​
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 spouse or child of a deceased co-owner, then the “presumption of advancement” will displace the presumption of a resulting trust and the funds will advance to the spouse 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 spouse 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. 

​Joint accounts in Ireland

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.

​The Account Mandate

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. 

​What is a Resulting Trust?

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.

​What is the Presumption of Advancement?

​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.

Gender Discrimination and the Presumption of Advancement

Picture

Read More
0 Comments

Some Good News for Setanta Claimants and Policy-Holders

1/2/2018

0 Comments

 
Picture
Not all Setantas are the same.
The Minister for Finance had some good news this week for Setanta third party claimants – not to mention the defunct insurance company’s unfortunate policy-holders – when he announced an agreement in principle that the State would ensure that compensation claims would be paid in full. The proposed scheme – once it clears all state aid and competition law obstacles – will also apply to claims against Enterprise Insurance which likewise shut down leaving thousands of policy-holders without cover and claimants unpaid.  

The announcement means that, at long last, there is an end in sight to many years of anxiety suffered by claimants and policy holders, the former worrying that their rightful claims would not be paid in full, the latter facing the prospect of personal ruin in situations where the value of the claim against them exceeded their ability to pay it.

It was often pointed out during the course of the Setanta debacle – and was acknowledged again by the Minister in his announcement –  that the victims of motorists who wilfully or negligently drove without insurance were compensated 100% for their injuries through the MIBI while, in contrast, those involved in an accident with a Setanta motorist – a supposedly insured motorist – faced the possibility that their claim would, at best, be only partially covered. This left the innocent Setanta policy-holder personally liable for the balance of the claim, which in some cases could be enormous.

The liquidation of Setanta was the subject of protracted court proceedings, ultimately decided by the Supreme Court in May 2017. The court held that the Insurance Compensation Fund (ICF) was responsible for the payment of third party claims up to 65% of the claim or €825,000, whichever was the lesser, leaving, in most cases, a shortfall of 35%. While there was some hope that the liquidation of the Maltese-registered insurer would eventually yield up to 22%, it was the policy-holders against whom the claims were made who were immediately on the hook for the deficit.

While the news is positive from the point of view of claimants and defendant policy holders, it is not so good for the average motorist who will be required to pay for an extended period the 2% insurance levy to the ICF, the fund initially set up to cover the costs of the collapse of Quinn Insurance. As a result of the newly-announced Setanta compensation fund, the ICF is due to last an additional eight months or so beyond its initially anticipated span. The fund is expected to expire in 2028 or thereabouts, provided there are no more insurance failures in the meantime.

​Watch this space.
Picture
0 Comments

The Transfer of a Site from a Parent to a Child - Taxation and Other Issues

30/1/2018

0 Comments

 
Picture
How you gonna keep 'em down on the farm after they've seen Paree?

1. Capital Gains Tax (CGT)

 Application of CGT, chargeable persons and rates 

CGT applies in relation to any life time transfer of property including the transfer of a site

CGT is charged on the person who sells or transfers the property.

A charge is applied even if the person who transfers the property is not receiving any consideration or payment in return for it. In such a case the property is deemed to be disposed of at market value and CGT is charged on that value. 

Tax is payable on the difference between the value of the site at the date it was acquired by the transferor and the value it has on the date of the gift to the transferee, at a rate of 33%. 

However, in the case of a transfer of a site from a parent to a child, a CGT exemption is available.
 
 CGT exemption on the transfer of a site from parent to a child
 
If a person transfers land to their child to build a house which is to be the child’s only or main residence, the transferor will not have to pay CGT on the transfer.  
 
In order to qualify for this exemption, the site must be:
  • an area of no more than one acre
  • with a value of no more than €500,000

​ In addition, the child is required to build a house on the land and occupy that house as their only or main residence for a period of three years.  
 
Clawback of the relief
 
The exemption will be clawed back in circumstances where the child does not comply with the requirements.
 
So, if the child disposes of the site either
  • without having built a house on the site
            or
  • having built a house on the land, but without having occupied that house as their only or main residence for the full period of at least three years,
then, in such circumstances, the CGT that the transferor parent would have been liable to pay on the transfer to the child if the exemption had not been availed of becomes payable by the child.
 
This clawback does not apply in a situation where the child disposes of the land to a spouse or civil partner.

Read More
0 Comments

Applying for the New Local Authority Mortgage Scheme? What You Need to Know

22/1/2018

0 Comments

 
Picture

The Rebuilding Ireland Home Loan Scheme

The government has just launched another initiative to help people  – who, up to now, had been excluded from the housing market  – purchase their first home.
 
The scheme, called the Rebuilding Ireland Home Loan, is due to commence on 1 February 2018 and is aimed at first time buyers with annual salaries of less than €50,000 for a single applicant or less than €75,000 for joint applicants.
 
The main benefits of the scheme will be, firstly, the relatively cheap lending rates –  starting at 2% over 25 years – and, secondly, the fact that it will offer potential buyers a way around the Central Bank’s income multiple rule which limits mortgage borrowings to 3.5 times the borrower(s)' salary.
 
The scheme will apply to first time buyers of new and second-hand (and self-build) homes.

Applicants will be able to borrow up to 90% of the purchase price up to a maximum purchase price of €320,000 in Dublin, Cork, Galway, Kildare, Louth, Meath and Wicklow, and €250,000 in the rest of the country. The effect of this is that the maximum loan (90% of the purchase price) will be €288,000 in the seven above mentioned counties and €225,000 everywhere else.
 
The loan term will extend over a maximum term of 30 years. 

The Basic Terms and Conditions

  1. The scheme applies only to first time buyers. In other words, an applicant cannot be the current owner of a property. There may be some exceptions to this rule, for example, in the case of legally separated or divorced applicants, although this is not explicitly provided for in the details published to date.
  2. A single applicant's income must be less than €50,000 (gross).
  3. Joint applicants’ combined income must be less than €75,000 (gross).
  4. The primary earner must be in continuous employment for at least two years; the second applicant must have at least one year's continuous employment. A  self-employed applicant must submit two years certified accounts.
  5. The applicant(s) must be aged between 18 and 70 years and the loan term must end on or before a borrower reaches 70 years of age.
  6. The applicant(s) will have to prove that they have sought a mortgage from two lenders (banks or building societies) and have received inadequate offers or refusals from each before making an application for a House Purchase Loan to the local authority.
  7. If the applicant(s) are renting, they must have a clear rent account for 6 months prior to the application.
  8. The applicant(s) must be buying or building a house whose market value does not exceed the limits for the county in which it is located.
  9. The applicant(s) must occupy the house as their normal place of residence.
  10. The property must have a gross internal floor area of 175 square metres or less, be in good condition (on completion) and have good marketable title.
  11. The applicant(s) must be of good credit standing with a satisfactory credit record. The local authority will run credit checks with the Irish Credit Bureau.

Interest Rates

The scheme offers three different rates, as follows: 
  • 2%* fixed for up to 25 years (APR 2.02%*).
  • 2.25%* fixed for up to 30 years (APR 2.27%*).
  • 2.30%* variable (subject to fluctuation) for up to 30 years (APR 2.32%*).
* These are current rates and are subject to change.
Picture

Read More
0 Comments

Important Changes to European Union (Basic Payment Scheme Inheritance) Regulations 2017

22/1/2018

0 Comments

 
Picture
"Hmm, I wonder when am I going to get that cheque in the post?"

​​The new default position is that Basic Payment Scheme entitlements will now stay with the land.

The Minister for Agriculture has, by way of Statutory Instrument No. 639 of 2017, given effect in Irish law to EU Regulation 1307/2013.
                                 
The Statutory Instrument provides:
 
Where a deceased person bequeaths land in a will and –
  • At the time of his or her death held an allocation of payment entitlements under Regulation 1307/2013, and
  • made no provision for those payment entitlements in his or her will
such payment entitlements (or share thereof) shall transfer with the eligible land unless there is a legal impediment preventing the transfer.
 
The Explanatory Note to the instrument states:
 
This Statutory Instrument provides legal basis to the Department of Agriculture, Food and the Marine for the inheritance of Basic Payment Scheme entitlements where the will of a deceased farmer is silent in relation to these entitlements. The SI provides for the entitlements to transfer with the land in such circumstances.
 
Thus, the position in regard to an inheritance of entitlements is different under the Basic Payment Scheme than it was under the Single Farm Payment Scheme.
 
The position is that entitlements now transfer with the land unless otherwise specified in the will or unless there is some other legal impediment preventing such a transfer.
 
The Statutory Instrument was executed on 21 November 2017 and published in Iris Oifigiúil on 19 January 2018
0 Comments
<<Previous
Forward>>

    Authors

    Ken Enright

    View my profile on LinkedIn

    Archives

    August 2023
    April 2021
    March 2021
    March 2020
    August 2019
    April 2018
    March 2018
    February 2018
    January 2018
    December 2017
    November 2017

    Categories

    All
    Agricultural
    Assisted Decision Making And Enduring Powers Of Attorney
    Family Law
    Office
    Personal Injury
    Probate And Succession
    Renewable Energy
    Residential Property

Proudly powered by Weebly