Wills, Death, Guardianship and Residency

Copyright Kim Howells

 

We are seeking expertise in this field to write us a blog, if you have experience in any aspect of these topics please email us on This email address is being protected from spambots. You need JavaScript enabled to view it.. We realise this may be a sensitive or delicate subject, and we will honour your Anonymity should you wish that.


 

It is the sad reality of life that our deaths will significantly impact the lives of our Spouses/ De Facto spouses and children on an emotional level. However, a conversation we all need to have in the realm of Immigration is "what happens in the event of my death when we emigrate?"

We are NOT by any means experts in this field, however we have steered several people who have been in these circumstances to get assistance from appropriate sources should it occur.

Herewith some extracts (some of which may be out of context), links and information for you to look into to seek the answers you need:

 

Wills and Property in South Africa and a new Irish Will

If you have property in other countries, you should make a will in each of those countries due to possible differences in succession law.

So, if you have South African assests, be certain sort that Will out before leaving South Africa.

At some point on your arrival in Ireland, make an Irish Will and keep it up to date with the details of your Irish Assests.

Some extracts from:

Irish Wills and devolution of foreign based assets

Anybody who owns an asset or who expects to receive a gift or inheritance in the future should make a will in Ireland.

It is also important to up-date one’s will as circumstances might warrant. Be mindful of the following:

  • On marriage, all previous wills are automatically revoked
  • Change in marital status (divorce or separation)
  • If one has children, dependants or otherwise
  • If one is in a long-term relationship but is not married
  • Travelling abroad
  • Retiring, getting older or suffering from illness.

Guardianship of Children under the age of 18

Guardianship and Trusts If a parent were unfortunate enough to be killed in an accident leaving children under the age of 18, the relatives would have to apply to court to have guardians appointed for the children. This can be avoided by naming a guardian in the will. A testator also may not wish for his/her children to receive money directly on death but may wish to place a fund in trust for them until they reach the ages of 18, 21 or sometimes older. You cannot do this unless you have made a will and appoint trustees.

 

Unmarried Couples 

As the law currently stands unmarried couples are viewed as “strangers in blood” and have no automatic inheritance rights unlike married couples. A will can be used to make provision for a lifetime partner, often referred to as the common law husband and wife or for the same sex partner.

 

Legal Separation/Divorce

Separation per se does not mean that the spouse automatically loses his/her legal right to the estate; however, his/her rights may be cancelled under the terms of the separation agreement or judicial separation, or can be cancelled by court order when a couple divorce. A new will can help clarify matters, particularly if the testator still wants to leave something to an ex-spouse.

 

Devolution of foreign based assets

The assets of an individual are generally divided into two categories:-

(a) Moveable property such as cash, furniture, paintings and jewellery and

(b) Immovable property such as houses, land, and other permanent structures.

In general, the devolution of moveable property is dealt with by the law of the country where the person is domiciled, while the devolution of immovable property is dealt with by the law of the country where the property is situated.

Where a person has assets in another jurisdiction it is important that care is taken in relation to the execution of foreign wills. It is vital that a will made in the Irish jurisdiction would not inadvertently revoke a will made in a foreign jurisdiction or vice versa.

 

Practicals of dealing with a Death

CitizensInformation:

Married and Unmarried couples and Children (Paternity testing): Presumption of paternity

 


 

Residency status of the remaining Non- Eu/EEA Dependants

relatives of the Approved Sponsor in Ireland, on death of the Sponsor

 

1. Non- Eu/EEA Dependants of Work permit holders and Non- Eu/EEA Dependants of Irish Passport holders

 

Your change in circumstances falls under Irish domestic law, and as such under the Minister of Justice and their decision on your circumstances.

You will need to inform the INIS registration office or your local Immigration Officer of your spouse/civil partner’s death.

From the Family reunification Document:

23 Change in Circumstances/Retention of Status

23.2 In the event of the death of the sponsor, departure from the State of the sponsor, divorce or annulment of a civil partnership, the family member must notify the immigration authorities and may apply to INIS for a change of status. The possibility to apply for a change of status is currently facilitated by INIS on a case by case basis. The “changed status” which may be granted to the family member will depend on that family member’s new situation (e.g. are they working, studying, dependent on another resident, etc.) and the circumstances of the change.23.2 Other matters that will be considered in respect of the change of status application will include:

  •  The immigration status (if not a citizen) of the sponsor;
  •  the length of time the sponsor has resided in Ireland;
  •  the purpose of their stay;
  •  compliance with previous immigration conditions;
  •  conduct;
  •  The duration of the marriage/civil partnership or de facto relationship
  •  Any children of the relationship
  •  any other relevant matter.

23.3 Where the sponsor dies, the circumstances of the case will be considered on its merits, taking into account the factors set out in the
Page 64 of 71 64 previous paragraph, but a sympathetic view would be taken. As a guideline, a person who has resided here for two years prior to the death of the sponsor should be granted immigration permission in their own right. Where the period of residence prior to death is less than this but extensions but sufficient time should be allowed to the person concerned either to make arrangements for returning to their country or origin or, in the alternative, seeking employment in Ireland as a means of staying on.

For more on the Family Reunification document here:

- We have gone deeper by analysing this 71 page document page by page with a breakdown and information

 

 

2. Non- Eu/EEA Dependants of EU/EEA (EU Treaty) and British Pre-Brexit (under the Withdrawal Agreement pre- 31st Dec 2020)

You Change in Circumstances falls under EU law.

As such you follow the infomation here

   Change of Circumstances- EU5

 

3. Non- Eu/EEA Dependants of British (post Brexit 1st Jan 2021 under the new Policy Document)

Your change in circumstances falls under Irish domestic law, and as such under the Minister of Justice and their decision on your circumstances.

You will need to inform the INIS registration office or your local Immigration Officer of your spouse/civil partner’s death.

9.5 Requests of this nature for permission to reside will be dealt with on a case-by-case basis and may take into consideration a range of factors, including but not limited to

  • the length of time the sponsor resided in the State before they died or departed the State,
  • character and conduct of the sponsor,
  • duration of marriage/civil partnership or de facto relationship,
  • any children of the relationship,
  • the length of time the applicant resided in the State,
  • the current relationship status of the applicant,
  • previous and current activities of the applicant, for example, history of employment, self-employment, periods of study, dependency on sponsor or other person or dependency on Irish State support,
  • any other relevant information.

9.6 Where a sponsor has died, the circumstances will be considered on their merits sympathetically. As a guideline, an applicant who has resided in the State for the two years prior to the death of a sponsor may be granted permission in their own right.

In other circumstances, sufficient time will be allowed to the applicant to make arrangements to return to their country of origin or to seek permission under an alternative immigration pathway in this State.

 


 

Important links: 

 

  #MapMyMove- Our coaching Services - Confused or lost and need some direction, book a session with us to help untangle the confusion and work out your route of immigration

   Habitual Residence - Looking deeper at Habitual Residence

  Permanent Residence and Naturalisation - How this works and how to prepare yourself from day 1 for five years time

  SOLVIT- The EU Commission

What is SOLVITSOLVIT is a service provided by the national administration in each EU country and in Iceland, Liechtenstein and Norway. SOLVIT is free of charge. It is mainly an online service. Although there is a SOLVIT centre in each country, the best way to contact them is via this website.

The United Kingdom left the SOLVIT network on 31 December 2020. As a result, SOLVIT can no longer assist UK nationals in European Union member countries or EU nationals in the UK.

   Irish Law

   Immigrant Council of Ireland

   Irish Human Rights and Equality Commission

   FLAC (Free Legal Advice Centres)

X

Right Click

No right click