Probate & Trusts Services
Our family law department handle Wills, Probate and the administration of Estates.
What is Probate and How does it Work?
Probate law in Ireland is the body of law that governs the administration of the estate of a deceased person. This legal process allows a person to deal with the assets of the deceased i.e. property, money and other possessions, owned by the deceased at the date of death. Authority to deal with the assets of the deceased is given in the form of a document which is usually referred to as a Grant of Representation or a Grant of Probate. Probate law can be a complex area of law, but in general, it sets out the process for identifying and valuing the assets of the estate, paying any debts owed by the deceased, and distributing the remaining assets to the beneficiaries of the estate.
Key aspects of Probate Law in Ireland
- Intestacy: If a person dies without leaving a valid will, their estate is said to be intestate. In this case, the estate will be distributed to the deceased’s next of kin in accordance with the rules of intestacy.
- Wills: A will is a legal document that sets out how a person wishes their estate to be distributed after their death. Read more about Making a Will >
- Executors: An executor is the person who is responsible for administering the estate of a deceased person. Executors are appointed in the will. Executors must obtain a grant of probate before they can begin to administer the estate.
- Beneficiaries: Beneficiaries are the people who are entitled to receive a share of the deceased person’s estate. Beneficiaries are those named in the will, usually the children of the deceased.
Obtaining a Grant of Probate
The first step in the probate process is to obtain a grant of probate. This is a legal document that gives the executor (or personal representative) of the estate the authority to deal with the estate’s assets. To obtain a grant of probate, the executor must apply to the Probate Office and provide evidence of the deceased’s death and the validity of the will (if there is one). Once a grant of probate has been obtained, the executor can begin to administer the estate. This involves identifying and valuing the estate’s assets, paying any debts owed by the deceased, and distributing the remaining assets to the beneficiaries of the estate.
There is a Will
If there is a Will then the Executor (the person named in the Will who has the job of carrying out the terms of the Will) applies for a Grant of Probate.
There is NO Will
If there is NO Will (if the deceased dies intestate), or if no Executor has been appointed or the person that was appointed cannot act then an Administrator may be appointed and they can take out Letters of Administration. It is usual that the nearest living relatives will be appointed as Administrators.
If the appointed executor cannot fulfill their role for any reason, the person who is supposed to inherit the remaining assets (the residue) as per the will can apply for permission from the court to handle the estate. This legal permission is called a “Grant of Letters of Administration with Will Annexed.” It ensures that the deceased person’s wishes, as outlined in their will, are still carried out, even if the originally appointed executor cannot do so.
When is it necessary to extract a Grant of Probate?
1. Leaves behind land or property
If a person dies leaving behind land or property which was in the sole name of the deceased, then it is necessary to apply for a Grant of Probate to allow the property to be sold or transferred into the name of the new owner.
2. Leaves money in bank account
If the person has died leaving money in a bank account or building society then it might be necessary to take out a Grant of Probate. Whether or not the Grant will be necessary depends on the amount of money in the account/building society. It is advisable to contact the relevant institution to enquire as to whether they will require the Grant or not. Usually if the amount is in excess of €10,000 then the institution in question will require a Grant before transferring any funds.
3. Leaves a joint account
If deceased dies leaving a joint account it might be necessary to extract a Grant of Probate as the money in the joint account may not automatically pass to the surviving account holder. It will depend on the reason the account was opened, who had control of the account, who paid into the account etc. Again it will be necessary to check with the institution in question as to whether or not they will require a Grant.
4. Owns property in joint names
In most cases where the deceased owned property in joint names at the date of death the property will pass by survivorship to the surviving joint owner and in this situation a Grant of Probate will not be necessary. It is however important to bear in mind that not all joint ownerships are straightforward and there can be situations where a Grant will be required.
5. Owns assets in a foreign jurisdiction
If the deceased was living in Ireland at the time of their death but owns assets in a foreign jurisdiction then it may be necessary to take out a Grant in Both Ireland and in the foreign jurisdiction where the assets are situated.
What happens if the deceased has no assets?
Where a person has died leaving behind no assets then a Grant of Probate will not be necessary.
How do I apply for a Grant of Probate?
An Executor or Administrator can apply to take out a Grant by employing a Solicitor to deal with the whole process or make a personal application for probate/administration. The involvement of a Solicitor although optional is advisable, especially when dealing with a large or complex estate. Extracting a Grant can be a complicated process and therefore the knowledge and expertise of a Solicitor can be very beneficial and help to alleviate the Executor of unnecessary stress.
To make a personal application the Executor must attend in person at the Probate Office and it must be borne in mind that the Probate Office has the discretion to refuse to allow an applicant be accompanied by an advisor. It is important to note that an Executor of an estate may be sued by the beneficiaries if the estate is not distributed within one year and the Executor is under a duty to preserve the assets of the estate until such time as they are distributed.
Read more – topics related to Probate
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