If a person dies, and has made a will, and there is no surviving joint owner, then the executors named in the will need to obtain a Grant of Probate in order to sell or distribute the deceased person’s assets. 2. The executors named in the will must obtain a Grant of Representation from the probate office in order to begin the process. 3. If there is no will, then this Grant of Representation can be obtained by the deceased’s next of kin from the probate office. 4. Similarly, if executor is unable or unwilling to act, a Grant of Representation can be obtained. 5. The sale of a probate property cannot be closed until late Grant of Probate has been issued by the probate office. 6. Remember that if the property is jointly owned and the joint owner is still alive, then probate not usually needed. 7. A Grant of Probate is required because the courts will want to be satisfied that the property or assets are being legally transferred to the right beneficiaries. 8. If you want to sell a probate property, the marketing, viewings and acceptance of the highest bid can all be done while the probate process is taking place. 9. However, please remember that the sale cannot conclude without the Grant of Probate. 10. It is possible you with the entire probate process yourself, but our strong advice to engage the services of an experienced probate solicitor.
Probate is the legal process whereby the estate of a deceased person is dealt with (usually by a solicitor) and distributed to the beneficiaries of the will.
If the deceased person left a will, the person who deals with the estate is called the ‘executor’. The executor needs to take out Probate.
What is probate?
Taking out probate means having the Probate Office certify that:
· The will is valid
· All legal, financial and tax matters are in order
Wills only take effect when the Probate Office accepts that the will is valid. The will is said to have been ‘proved’. The Probate Office may make some enquiries before making its decision, for example, it may require a sworn affidavit from one or both of the witnesses
If there is no will, the person who deals with the deceased person’s estate is called an ‘administrator’. An administrator may also be appointed if:
· There is a will, but no executor has been appointed
· The appointed person cannot act as executor
· The executor cannot or will not carry out their duties
The administrator needs to take out a Letter of Administration (or a Letter of Administration with Will Annexed if there is a will).
Usually, the next of kin applies for a grant of administration. Priority is given in the following order:
1. Spouse or civil partner
4. Brother or sister
5. More distant relative
The Probate Registrar will make a decision if there is doubt about who is entitled to be the administrator. The administrator must give an administration bond to the Probate Office – this is a sort of guarantee that you will carry out your duties properly.
The duties of the executor and administrator are broadly the same
You must use a solicitor if:
· The person entitled to get the Grant of Representation is a ward of court or of unsound mind
· The persons entitled to get the Grant of Representation is under 18
· There are issues concerning the validity of the will
· There are disputes among the next of kin about the estate
· The original will is lost
· A beneficiary of the will of more than €20,000 (apart from the spouse of the deceased) lives outside of Ireland and you also live outside of Ireland
· The deceased person lived outside of Ireland and nobody who lives in Ireland is entitled to get a Grant of Representation
· The deceased person lived outside Ireland and left a will in foreign language
· There are other circumstances which, in the opinion of the Probate Office, need the assistance of a solicitor
What are the duties of executors and administrators?
You are obliged to distribute the assets as soon as possible after the death. You may be sued by the beneficiaries if you do not distribute the estate within a year.
You have 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 are properly insured.
You have the power to:
Ø Deal with the estate (for example, to sell it to pay debts or distribute to beneficiaries)
Ø Represent the deceased in legal actions and to settle legal actions against the deceased’s estate
· Gather together and protect all the deceased’s assets such as money, shares and property and find out their combined value
· Call in any outstanding funds due (money owing to the deceased)
· Pay any debts or taxes owed
· Pay the funeral expenses
· Make sure that the spouse (or civil partner) and children know about their legal right share
· Make sure the entitled beneficiaries or next of kin get what they are entitled to, and that ownership of property is passed on correctly.
If the deceased was receiving social welfare
If the deceased was receiving a social welfare payment, you must inform the Department of Social Protection of the death before distributing the estate. This is to allow the Department 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 personally responsible to repay the overpaid amounts. You can read more about social welfare requirements in the Department’s document on overpayment recovery.
Capital Acquisition Tax
The executor or administrator does not have to deduct and pay the Capital Acquisitions Tax (CAT) due from the beneficiaries before passing on the proceeds of the will to the beneficiaries. 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 IT38to 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. See Revenue’s Guide to completing the IT38 return.
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. Client Identity Services can be contacted using the CIS secure online request form or by phone at Lo-call 1890 927999 or (071) 967 2616.
If the deceased dies in debt
If the deceased person dies insolvent or there isn’t enough money to meet the bequests (the items left to someone in a will) made, payments from the estate are prioritised in the following order:
1. Funeral, testamentary and administration expenses. Testamentary and administration expenses are the expenses incurred in dealing with your estate
2. Creditors who have security against the property of the deceased for example mortgage providers.
3. Preferential debts –these are mainly taxes and social insurance contributions due at the deceased person’s death.
4. All other creditors.
Where the deceased person 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 for the deceased’s debts (unless, of course they had guaranteed them).