Lynch Solicitors for Information Purposes Only
What is probate or Administration of Estates?
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.
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.
Should the Executors bring anything with them to this meeting?
Yes, the Executors should bring with them a copy of the Death Certificate.
And 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 shoebox” 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. 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.
And to return to a situation where someone dies intestate 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.
Podcast: Probate & Administration of Estates Pt. 2
You can listen to a podcast of this article below.