Probate or Administration is the term used to describe the legal process that you must go through to deal with the assets and liabilities of a deceased person.
This process has the effect of authorising a named person or persons to take control of a deceased person’s estate.
They get a legal document,, usually called a Grant of Probate or Letters of Administration, which is their authorisation.
Generally, there are two scenarios – where a person leaves a Will or where there is no Will or effective Will.
If there is a Will, the authorised person gets their instructions from the Will.
If there is no Will, the authorised person gets their instructions from the Law – the Succession Act 1965.
Is that IT?
Generally a person can make whatever Will they like.
Two notable exceptions are in the case of spouses or civil partners and children.
Unless you have the agreement of a spouse or civil partner, you must leave them a minimum benefit in your Will.
You can exclude your children from your Will, but they can make a Court application to challenge this and look for a benefit.
The process usually starts with the nominated person (Executor or Administrator) seeing if there is a Will.
As Executor or Administrator, you then find the details of assets and liabilities and take them under your control.
You then submit the application to a state appointed office, called the Probate office, for your authorisation – the Grant of Probate/Grant of Administration. You must also submit all the details for clearance to Revenue.
Once a Grant Authorisation is issued, you can carry out your instructions under the Will.
If there is no Will, you have to follow certain rules to finalise everything.
Once all assets are gathered, debts and liabilities will be discharged and the inheritance of beneficiaries will be paid.
When this has been completed, accounts must be done setting out the details of the administration of the deceased assets.
Is it easy?
The filing of the papers is usually relatively straightforward.
It is the legal requirements that often cause the problems.
The real danger is that sometimes it hard to identify problems without all the facts and a good knowlege of the law.
All the paperwork for the probate application must be completed in the exact format required by the Probate Office. Incomplete applications or applications which do not comply with the rules will be rejected which will result in delay, extra cost and frustration.
The Probate Office is the appointed office to ensure that the paperwork is in order.
Do you always have to get the authorisation?
If the assets are not significant, a bank may release funds without the Probate Authorisation.
They may look for an indemnity to be signed and tax clearance.
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.
What happens if Assets are not in the sole name of the deceased?
Assets can often be owned with someone else jointly, in two ways.
On one basis, joint tenancy, the survivor takes full ownership.
On the other basis, tenancy in common, each person has their own share.
It is important to find out which one applies.
Who is responsible for taking out this authorisation?
If a person dies leaving a Will, the Executor is responsible.
If there is no Will, the legal rules usually mean it is the next of kin.
How long does this process take?
How long is a piece of string!
It depends on the size and complexity of the estate. The time involved depends on how long it takes to gather all the information to present the application to the Probate Office.
The Executor’s job can be made easier if a person making a Will leaves a brief summary of their assets with clear instructions.
If someone dies without a will, are the steps more or less the same?
They are more or less the same.
Except for a further requirement to get a Bond – which is like an insurance policy.
This material is provided for general information purposes only and does not amount to legal or other professional advice. While every care has been taken in the preparation of the information, we advise you to seek specific advice on any legal decision or course of action.