In Ireland, the process of administering a deceased person's estate can seem extremely complex.
Two situations can arise on a persons death which impact the process by which the estate will be administered:
The deceased has made a will - the will sets out who the Executor(s) are, who the beneficiaries are and how the estate is to be distributed. The deceased has specified these details in the will and has done so prior to their death.
The deceased has not made a will - the rules under the Succession Act come into play governing who is entitled to administer the estate, who the beneficiaries are and how the estate is to be distributed. The deceased has not specified these details in any will and therefore Succession Rules dictate who administers the estate and who is entitled to be a beneficiary.
If you are are attempting to administer an estate and require advice please contact us and we can guide you through the process.
The Grant of Representation:
Before the executor/administrator of the estate can begin to deal with any assets of the estate they must apply to the appropriate Probate Office for a Grant of Representation.
There are three main types of Grant:
Grant of Probate - If there is a will.
Letter of Administration - If there is no will
Letters of Administration with Will Annexed - If there is a will but no executor appointed
Other types of Grant exist in more complex Probate applications.
The Executor or Administrator undertake a number of duties when attempting to deal with an estate, which can be particularly onerous when it comes to large and complex estates.
Before attempting to deal with an estate we would recommend having a consultation with one of our Probate Solicitors to at the very least determine the complexity of the estate. The documentation required to submit an application for a Grant of representation can be particularly onerous without legal advice.
Someone close to you has died, and has made a will
If a person dies, having made a will the process of Administering the estate is dealt with in the will itself. The first question will be where is the will. Generally, the will is kept with the Solicitor who prepared it for the deceased. All of our clients wills are safely stored in purpose built fire proof safes.
We advise everyone over the age of 18 and particularly those with children, a house, pension or significant assets to make a will as soon as possible. Please feel free to contact us today and and arrange a no obligation consultation with one of our Solicitors. We offer advice on estate planning alongside the preparation of a tailor made will to suit small, medium and large estates. By planning your estate with our firm the beneficiaries of your estate could make significant tax savings.
Someone close to you has died, without making a will
If a person dies without a will, an Administrator must be appointed.
The next of kin generally apply for a Grant of Administration.
Priority is given in the following order:
1. Spouse or Civil Partner of the deceased.
4. Brother or Sister
5. If 1- 4 do not apply then a more distant relative determined by the Succession Act.
In the above situation, you may experience a person attempt to apply for a Grant of Representation without having priority. If this arises a Caveat can be lodged to appose a Grant of Representation issuing to that person.
Lodging a Caveat
The purpose of a Caveat is to notify the probate office that you intend to oppose an aspect of the will or the appointment of an administrator without priority. The Probate Office is not concerned with the particulars of the challenge to the will or the lack of priority.
However, by lodging a Caveat they are obliged to notify you when they intend to issue a Grant of Administration, at which time you/your solicitor will be notified to act to challenge the will and/or prevent the Grant from issuing.
Documentation Required for the Probate Office to obtain a Grant
The documentation required to obtain a Grant of Representation can be particularly burdensome. We can guide you through the entire process. Contact us today to arrange a consultation without obligation.
Powers/Duties of Executor or Administrator
Your most important duties are:
Generally, you are obliged to distribute the assets as soon as possible after the death (within a year if possible) - the beneficiaries may be entitled to bring proceedings against the Executor/Administrator if you do not distribute the estate within a year. However, this may not be possible if there are legal issues to be decided.
You are under a duty to gather, preserve and protect the assets of the deceased until they are distributed. For example, insurance on property.
You must ensure there is no claims against the estate. If the deceased was receiving any type of Social Welfare payment you must inform the Minister for Social Protection of the death before distributing the estate. This is to allow the Minister to reclaim any overpayment of pension/welfare that may have been made. The Department has 3 months to decide whether or not an overpayment was made. If you fail to do this, you may be made personally liable to repay the overpaid amounts.
Your most important powers are:
To deal with the estate. To sell/transfer the assets as required, to pay debts/liabilities/taxes and then distribute amongst beneficiaries. In some circumstances the Executor/Administrator must represent the deceased in legal actions and to settle legal actions against the deceased's estate
To gather together and protect all the deceased's assets: shares, livestock, dividends, insurance policies, private and business cash assets or property and find give an account of their values. Ensure payment of any outstanding funds due to the deceased. Pay the funeral expenses.
To ensure that the deceased's spouse (or civil partner) and children know about their legal right shares.
To ensure the correct and entitled beneficiaries or next of kin get what they are entitled to from the estate, and that ownership of property is transferred correctly.
If you have decided to simply make a will or if you are an Executor in a deceased's will or believe you may be the rightful administrator of an estate please get in touch with us today to arrange an appointment with one of our Probate Solicitors.
The information contained above is intended as a guide only and does not purport to be legal advice. Independent and specific legal advice should be sought.