Tipp FM Legal Slot – 24th September 2013
Probate & The Administration Of Estates[soundcloud id=’165869951′]
What does the term Probate mean?
Probate is the legal term used to describe the process that you must go through to enable someone to deal with the assets of a deceased person.
When someone dies their property immediately passes into the hands of the executor(s) if there is a will or if there isn’t a will the law will determine who it passes to.
In order for the property of the deceased to be divided an application must be made to the Probate office for authority to deal with the assets.
The document issued is known as a Grant of Representation or a Grant of Probate.
The Grant is necessary because when someone dies their assets are frozen.
For example banks, credit unions etc. will freeze the deceased’s assets and generally only upon production of a Grant will they release funds.
Are there different types of Grant depending on the circumstances?
- Grant of Probate: where a person dies leaving a valid will and appoints an Executor.
- Grant of Letters of Administration: where a person dies without having made a valid will, they are deemed to have died intestate. The Grant issues to the person or persons who were their nearest next of kin at the date of death. The Succession Act 1965 determines who the next of kin is.
- Grant of Letters of Administration with Will Annexed: where a person dies having made a valid will and a person other than the executor applies the Grant issues to the persons entitled by law.
Is it always necessary to take out Probate?
No, if the assets are not significant generally a bank will release funds without production of the Grant for example if the estate comprises €7,000 a bank would not insist on production of a Grant simply to deal with this and would release to the next of kin if they provided them with an Indemnity.
Banks differ on the amount they will release without a Grant.
People can also nominate a person who will be entitled to take over their account. This usually happens with credit union accounts, post office accounts or assurance policies.
Another situation where you might not need a Grant is if properly is held jointly as joint tenants.
What happens if the property is jointly owned?
If a Testator owns property jointly with one or more people the Solicitor will need to establish if the Testator owned that property as joint tenants or tenants in common.
If it is the former i.e. a joint tenancy the will of the Testator will have no bearing on what happens to the property, ownership will automatically pass to the surviving owner.
A very common example of this is the family home – in most cases nowadays when couples by the family home it is in joint names and if that is the case ownership will pass to the survivor on the death of the husband or wife.
If on the other hand the Testator and one or more other people owned that property as tenants in common the Testators share will pass to whatever beneficiaries are named in the will, unless the Testator and his co-owners have what we call a co – ownership agreement which is an agreement which regulates what happens when one of the owners dies – there is usually a buyout clause for the other owners.
Who is responsible for taking out the Grant?
If a person dies leaving a will the Executor is responsible.
If there is no will the law determines who is entitled to take out the Grant.
The legislation that governs this area is the Succession Act of 1965 and the Act sets out very clearly the priority in which people can extract a Grant of Letters of Administration.
- If a person dies, and is survived by his wife and children, the person that is entitled to take out the grant is the surviving spouse.
- If, on the other hand, there is no surviving spouse the children are then entitled to apply for the Grant.
- If the deceased was unmarried, but survived by his parents and brothers and sisters. In that case either or both of his parents can apply for the Grant.
Where a person dies testate (having made a will) what steps must be taken in order to apply for the Grant of Probate?
In most cases you will find that the will is held by the Solicitor that acted for the Deceased person and the Executors 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.
What you will generally find is that the Executor will make contact with the Solicitor to inform them that the Testator has passed away.
The Solicitor will make arrangements for the Executors to call to his/her office at for the reading of the will.
Should the Executors bring anything with them to this meeting?
Yes, the Executors should bring with them a copy of the Death Certificate.
What will happen after that meeting?
Essentially the Executors and the Solicitors will be on a fact finding mission.
In order to apply for the Grant of Probate the Executor and the Solicitor first need to supply a list of assets and liabilities of the Testator to the Revenue Commissioners. This is done by way of Affidavit and on a form called the Inland Revenue Affidavit. So once the will has been read the Solicitor and the Executor will need to establish what assets the Testator owned, their value and any debts owing by the Testator in order to complete the Inland Revenue Affidavit.
This Affidavit also requires details of the beneficiaries so it is usually the point where you would write to the beneficiaries to inform them of their entitlements under the will and obtain the information from them that will be required by the Revenue Commissioners in order to process the Inland Revenue Affidavit.
How long does this process take?
It largely depends on the size of the estate. If the Testator owned a lot of properties 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 Executors job can be made easier if a person making a will thinks to leave a brief summary of their assets with the will – this will enable the Executor and the Solicitor to start the process a lot quicker by knowing where and what to look for. In some cases the Executor and Solicitor will have no idea what assets the Testator owned and they have to trawl through “the shoe box” at home in order to get clues as to where to start looking.
Once the Executor and Solicitor are satisfied that they have located all of the assets and the Inland Revenue is complete it is sent to the Revenue Commissioners and after processing the form they will issue what is known as the Certificate for the High Court. This if you like is the go ahead to make the application to the Probate Office.
And while all of this paperwork is being attended to are there any practical steps that the executor should be taking?
Yes, the Executor also has a duty to protect the assets of the deceased. The Executor needs to make sure that any property belonging to the Testator is secure. In the case of a house for example the Testator should make sure that valuables are removed and that the house is adequately insured.
And what happens then?
The Solicitor will prepare the Application for the Probate Office. The Executor will have further papers to complete with their Solicitor, including what is known as the Oath of Executor. The Oath must be signed by the Executor and in that document they confirm to the High Court – which is the office responsible for Probate matters – that they will administer the estate in accordance with the will of the Testator. The Executor is making a substantial commitment in this document and the significance should not be underestimated.
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.
And what can the Executor do once the Grant of Probate issues?
Once the Grant of Probate issues the Executor is entitled to gather in all of the property of the Testator and distribute it in accordance with the directions in the Will. 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.
Where someone dies intestate (without a will) are the steps more or less the same?
They are more or less the same; the Inland Revenue must be compiled in the same way.
When someone died intestate there is a further requirement to get a Bond – which is like an insurance policy – once the Inland Revenue Affidavit had been certified by the Revenue Commissioners.
Apart from that the process is the same.