Probate

Let us help you with all or any of the following:-

  • Assistance to Executors administering estates
  • Releasing money from a bank account after someone has died
  • The sale of a property owned by a deceased
  • Release of Shares owned by a deceased
  • Claims under pensions or life insurance policies
  • What to do when there is no Will
  • Dealing with the deceased’s estate

The Role of Executor

The role of Executor or Administrator can be an onerous one. The deceased’s estate may involve valuable or complex matters and an Executor or Administrator is personally liable for administering the estate correctly.

Every Executor or Administrator can instruct a solicitor of their choice to assist them with the Estate Administration and the legal fees are settled by the deceased’s Estate.

Rules

In order to get the authority to administer the estate, a legal document called a Grant of Representation is required of which there are three types. If there is a Will, then the executor needs to take out probate. If there is no Will, or, if no executor has been appointed or the appointed person cannot act, an administrator may be appointed and he/she takes out a Letter of Administration (or a Letter of Administration with Will Annexed if there is a Will).

The duties of the executor and administrator are broadly the same. If the estate is complex, it may be advisable to appoint a solicitor to do the job. He/she will be paid out of the estate and will usually charge around 3% of the value of the estate (or less on very large estates). If matters are fairly straightforward, the executor/administrator may decide to make a personal application.

Taking Out Probate

Taking out probate basically means having the Probate Office or the appropriate District Probate Registry certify that the Will is valid and that all legal, financial and tax matters are in order so that the executor or administrator can be allowed to get on with the job of distributing the estate.

“Proving” the Will is the process by which the Probate Office accepts that the Will is valid and may be put into effect. The Office may carry out some enquiries, e.g., it may ask to see the witnesses to the Will but this does not always happen.

Appointing an Administrator

If you don’t make a Will, an Administrator must be appointed. An Administrator is also appointed where an Executor is not named in the Will, dies before the Testator or is unwilling or unable to act.

The next of kin may apply for a Grant of Administration.

Duties of Executor/Administrators

Generally, you are obliged to distribute the assets as soon as possible after the death (within a year if possible – you may be sued by the beneficiaries if you do not distribute the estate within a year). This may not be possible if there are legal issues to be decided).

You are under a duty to preserve the assets of the deceased until they are distributed and to protect the assets from devaluation. For example, you should make sure that all assets required to be insured are insured for their market value.

You have power to:

  • Deal with the estate (for example, to sell it to pay debts or distribute amongst beneficiaries)
  • Represent the deceased in legal actions and to settle legal actions against the deceased’s estate

Social Welfare Recipients

If the deceased was receiving a social welfare payment, you must inform the Minister for Social Protection of the death before distributing the estate. This is to allow the Minister to reclaim any overpayment of pension that may have been made. The Department has 3 months to decide whether or not an overpayment was made. If you fail to do this, you may be made personally liable to repay the overpaid amounts. You can read more about social welfare requirements on the Department’s document on Estate Cases.

Transferring Land

You transfer land by way of an “Assent” to the beneficiary under the will or under the Succession Act. An Assent must be in writing. If you are the beneficiary, it is not absolutely necessary for you to vest the property in yourself by way of an Assent (as technically the property already vests in you). However, it is recommended practice that you do so in order to facilitate any future selling of that land.

Capital Acquisition Tax

The Executor/Administrator is not required to deduct and pay the Capital Acquisitions Tax (CAT) due from the beneficiaries before passing on the bequest. When probate has been granted, the Probate Office sends a copy of the Revenue Affidavit to the Revenue Commissioners. The Revenue Commissioners will then issue a Form IT38 to each beneficiary who it understands may have a requirement to pay and file a CAT return. The obligation to pay and file a return rests with the beneficiary.

Beneficiaries Living Abroad

Someone who is a beneficiary under an Irish Will has to supply a Personal Public Service (PPS) number before a Grant of Probate can issue. The Department of Social Protection’s Client Identity Services (CIS) provides a Registration Service for non-resident applicants who cannot attend at a designated PPS Registration Centre and who need a PPS Number for a transaction with a specified body.

If the Deceased Dies in Debt

If the deceased dies insolvent or there isn’t enough money to meet the bequests made, payments from the estate are prioritised in the following order:

  1. Funeral, testamentary and administration expenses
  2. Creditors who have security against the property of the deceased in the form of a mortgage, charge or lien (these are different ways of securing loans)
  3. Rates and taxes due at the testator’s death, wages and salary for work done for the deceased within four months of death and sums payable by the estate in respect of contributions payable by the deceased in the twelve months prior to death under social welfare legislation (his/her own PRSI contributions as well as PRSI contributions for employees).

All Other Creditors

Where the deceased dies in debt, creditors can only bring a claim against the estate of the deceased. Even if there isn’t enough money in the estate to meet all the debts, the relatives of the deceased are not personally responsible or liable for the deceased’s debts (unless, of course, they had guaranteed them), or specific funeral plans.

If the person died leaving a valid Will, then the named Executors take on this responsibility. In the absence of a valid Will, the person is said to have died “Intestate” and the Intestacy Rules as prescribed by the Succession Act of 1965 determine who can be appointed as the Administrators of the estate.

Challenging a Will

Wills are the cause of much litigation, particularly where children have been excluded. A child, unlike a spouse, is not automatically entitled to a specified share in a deceased person’s Estate as a right. However, if a child has been excluded from a parent’s Will they can challenge this exclusion under the Succession Act 1965. Section 117 of the Succession Act 1965 allows a child of a testator to make an application to Court for a provision to be made.

The section states, “Where, an application by or on behalf of a child of a Testator, The Court is of the opinion that the Testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his Will or otherwise, the Court may order that such provisions shall be made for the child out of the Estate as the Court thinks just.”

The time limits for taking an action under Section 117 of the Succession Act are very strict. The Family Law (Divorce) 1996 states that an application must be made within 6 months of the date of issue of the Grant of Representation to the deceased’s Estate.

These proceedings are normally taken in the High Court, where costs are very large. Section 117 (5) of the Succession Act directs that the costs of the proceedings shall be at the discretion of the Court. In the vast majority of cases, where the proceedings are not deemed to be vexatious the costs are borne by the Estate. However, this is not always the case and anyone contemplating High Court proceedings under Section 117 of the Succession Act would have to be sure that they have a reasonable prospect of success before embarking on same.