Administration of your Estate – what happens when you are gone?
Probate is the legal term for a procedure that gives a person, chosen by you, authority to carry out your wishes as set out in your Will.
When someone dies their assets are frozen; Banks will freeze monies in accounts and only unfreeze funds when Probate is completed.
After going through the various legal steps, the High Court gives you a document called a Grant of Probate. (It has another name where there is not a will – Letters of Administration).
Where there is not a lot of money in an account, a bank may release funds without looking for a Grant; it might also release money to the next of kin if they get a personal guarantee. Each case will be considered on its own merits by the bank.
A Grant may not be necessary if property was owned in joint names as ownership will automatically pass to the surviving owner, regardless of what is specified in the Will. A very common example of this is the family home – in most cases nowadays when a couple buy “the family home” it is in joint names so ownership will pass to the survivor on the death of the husband, wife or partner. If, on the other hand, the property was owned as “tenants in common” the deceased’s share will pass to those named in the Will.
If a person dies leaving a Will the Executor is responsible for taking out the Grant of Probate. In most cases the Will is held by the Solicitor that acted for the deceased person and the Executor will have knowledge of it. It is advisable for anyone who makes a Will to let either the Executor or a family member know where the original Will is kept. It is usually the Executor who makes contact with the Solicitor when the Testator (person who died with a Will) passes away. The Solicitor will then make arrangements for the Executors to call to his/her office for the reading of the Will.
If there is no Will the law decides who is entitled to take out the Grant of Letters of Administration. The Succession Act of 1965 sets out very clearly, in priority, the people who can receive a Grant of Letters of Administration. One example is if a person dies, and is survived by his wife and children; the surviving spouse is entitled to take out the grant.
After the meeting the Executors and the Solicitors will be on a fact finding mission to find out the assets and the liabilities of the deceased. It is very helpful if the deceased has left a summary of assets, bank accounts and insurance policies with the Will as it can be a good starting point for the Executors in their enquiries.
If the Testator owned a lot of property and perhaps owned property abroad and also had multiple bank accounts and life insurance policies it can take some time to gather all of this information. The details of the assets and liabilities of the Testator must be disclosed to the Revenue Commissioners. Once all enquiries have been completed the Inland Revenue Affidavit is prepared for the Revenue Commissioners. At the same time the Executor will complete the application forms required by the Probate Office. Once the application is submitted the papers will be considered by the Probate Office and, if everything is in order, the Grant of Probate will issue.
Once the Grant issues the Executor is entitled to gather all of the property of the Testator and distribute it in line with the directions in the Will. So, for example, money in the Testators bank account can be withdrawn, shares can be sold and title to property (e.g. houses) can be transferred to the beneficiaries or sold depending on the instructions in the Will.
Further Reading About Wills, Trusts & Taxation
Your executor carries out (or executes) the wishes set out in your will and choosing the right person or persons is an important decision.
It should be somebody you trust to do this job. Ideally, it should be a job given to two people to act as co-executors.
The area of law on children is delicate and complex. The most common issues that arise with children are guardianship and custody. However, the scope of children within the law goes far beyond parental rights.
One common aspect is that of entering into a contract with a child.
Succession Rights for Separating Couples
There are important protections in Irish law for partners succession rights If they have been left out, or not properly provided for in the will of their deceased spouse. there are safeguards.
Under the Succession Act 1965, a spouse or partner has certain succession rights. They are entitled to half of the estate if there are no children. Alternatively, they will be entitled to one third if there are children. This right cannot be ignored by a Will unless you agree to waive your rights. This one-half or one-third share of the deceased’s estate is known as the Spouse’s Legal Right Share.