Tipp FM Legal Slot – 6th November 2012
John M. Lynch on Probate and Administration of Estates
Download Our Probate – Part I Notes
During the past few weeks I have been speaking to listeners about wills and today I will follow-on from wills by discussing probate and I will also mention the expected cutbacks in the upcoming Budget for 2013.
What exactly does the term Probate mean?
Probate is the legal term used to describe the legal process that you must go through to enable someone to deal with the assets of a deceased person.
In order to deal with the assets it is necessary to apply to the High Court for authority to deal with the assets.
The document they issue is known as a Grant of Representation or a Grant of Probate.
The Grant is necessary as 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.
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 in the case of property that 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 a 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 this 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.
To give a couple of examples:
A) 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.
B) If on the other hand there is no surviving spouse it is children that are next entitled to apply for the Grant.
C) Another quick example is a case of an unmarried person dying survived by his parents and brothers and sisters. In that case either or both of his parents can apply for the Grant.
Can we go back to the scenario where a person dies testate/ having made a will can you take us through the steps that 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 which stage the Will will be read.
Tune in to Tipp FM next week at 11:15am to hear the second part of my Probate discussion.