Every other difficulty in this area is a difficulty. Medical consent gets resolved at the hospital door, school forms get sorted, a passport eventually issues. But if a parent dies while their child is not, in law, their child, the estate is administered on that basis — and no subsequent legislation, sympathy or evidence of intention undoes it.
Intestacy, and the Word “Children”
Without a will, the intestacy rules apply, and they distribute an estate by reference to legal relationships rather than actual ones. A child who is not the deceased’s child in law does not take as a child. In a surrogacy family that can mean a child raised from birth by two people inherits from one of them and not from the other — with the estate instead passing to relatives who may have had no involvement in that child’s life whatsoever. Nobody has to behave badly for this to happen; it is simply the rules being applied to a family they were not written for. With a will, the danger is subtler and catches careful people. A great many wills leave an estate to “my children” without defining the term — and who falls within that phrase is a legal question answered by reference to legal parentage, not by reference to who grew up in the house. A will made before the family was formed, or drafted without the parentage position in mind, can therefore fail entirely to do what its maker plainly intended, and will do so at the one moment they cannot correct it. The fix is not complicated: name the child expressly, define any class of beneficiary carefully, and address the position openly in the document. It simply requires a will drafted by someone who knows the issue exists.
Six Things to Do, None of Which Waits for the Act
One: establish precisely who is a legal parent of your child today — most families have never had this confirmed and assume more than the law provides. Two: make or remake wills on both sides with the parentage position addressed expressly, naming the child and defining classes rather than relying on the word “children”. Three: take tax advice on the treatment that will apply — capital acquisitions tax operates by reference to the relationship between the person giving and the person receiving, with different thresholds for different relationships, and where a child is not a child in law of the person leaving them an asset the applicable treatment may not be the one assumed. The difference is large enough to matter to ordinary estates, not merely substantial ones. This practice does not advise on tax: those questions go to your accountant or tax adviser and to Revenue’s own guidance, before a will is finalised rather than after a death. Four: secure guardianship as soon as the route is available, and appoint testamentary guardians in the will — the question of who cares for your child if something happens to the legal parent is not one to leave to chance in a family structured like this. Five: consider whether life cover, nominations or trust structures should be arranged to pass value in a way that does not depend on parentage. Six: revisit all of it if the Act commences and a parental order becomes available, because that would improve the position considerably. The firm’s estates practice sits behind this work — see also probatesolicitordublin.ie.
When Were Your Wills Last Looked At?
If they predate your family, or use the words 'my children' without defining them, they may not do what you intend. This is the one item on the list that cannot be fixed after the event.
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