Probate & Estates
When someone dies a Grant of Probate or Administration is normally required to access and transfer assets.
Except with small estates, regulatory bodies, financial institutions and others will not deal with anybody apart from the formally recognised Executor or Administrator.
Probate and Administration are intricate areas governed by the Succession Act 1965. This regulates what happens when a person dies having made a Will (“testate”) or without a Will (“intestate”) and also sets out the rights and entitlements of spouses, partners, cohabitees, children and other interested parties.
The following list of Frequently Asked Questions (FAQ’s) should answer most queries:
When someone dies, everything he or she owns is referred to as the “estate.” Debts and taxes must first be paid. Once this is done the estate is divided as set out in the deceased’s Will. If there is no Will, the estate is divided under rules set out in the Succession Act 1965 (“the rules of intestacy”). These set out a relationship-based pecking order of rights to inherit (see below).
Where the deceased has made a Will, the process that allows the assets to be realised and distributed is called Probate. The representative of the deceased is known as the Executor which there can be more than one. The deceased is said to have died testate.
If there was no Will the deceased is said to have died intestate and this process is called Administration.
Where the deceased has not made a Will, the process that allows the assets to be realised and distributed is called Administration. The representative of the deceased is known as the Administrator which there can be more than one. The deceased is said to have died intestate.
If there was a Will, the deceased is said to have died testate and this process is called Probate
The Personal Representative can be either an “executor” (Will) or an “administrator” (no Will). The Executor(s) is/are the person/people named in the Will to deal with the estate. Where someone dies without making a Will, the right to be Administrator(s) follows the same order as the rules of intestacy (see below).
The Personal Representative (sometimes called the Executor or Administrator) is responsible for administering the estate. The law imposes extensive, sometimes demanding duties and personal legal responsibilities on this person or these people.
Once a person starts to act as Personal Representative (sometimes called the Executor or Administrator), he or she cannot withdraw without getting a Court Order. Other extensive and onerous personal legal responsibilities also attach. These include duties to:
- gather in, protect and keep assets safe, disconnect services etc.
- maintain insurance. If the deceased owned property such as a house the personal representative should contact the property insurer to ensure that the insurance will remain in place
- pay debts
- hold the estate as Trustee for the persons entitled
- identify and contact beneficiaries
- identify and contact potential beneficiaries. This is an increasingly complicated area. Irrespective of what a Will may say, spouses, civil partners, cohabitees and children have legal rights and options which must be addressed (see below)
- proceed as obliged by law, disregarding one’s own preferences, except where specifically allowed
- exercise proper care and attention, taking appropriate professional advice
- make full and accurate disclosure to the Revenue and other authorities
- act without delay
Notwithstanding that bereavement is a stressful and upsetting time certain decisions and arrangements have to be made.
Relatives and friends will have to be informed. The first practical step is usually to contact a Funeral Director or Undertaker to make arrangements. We advise all of our clients to make Will making clients to let their families know any particular funeral or related wishes. You should check if there is a Will to see if this has anything to say on the matter. You will need to check if there is a Will in any event so that the estate is dealt with. Most original Wills are kept by solicitors. Feel free to contact us to see if we hold one, we can also check with other solicitors for you.
After the funeral, the death needs to be registered with the Registry of Births, Marriages and Deaths.
When the funeral account is received, we will able to arrange for immediate payment from any bank, building society, post office etc. account of the deceased.
We believe “People Deal With People”. Our job is to make your job easier. We provide a specialist probate service. We are a solid and practical law firm with over 25 years’ experience. We are located in the heart of Dublin at 11 St Stephens Green. The benefits of using Thomas Barry & Company in probate cases are:
- Reducing the Personal Representative’s Load
We relieve the burden by guiding Personal Representatives through the legal process. Our work includes preparing the various legal documents and dealing with beneficiaries, claimants, financial institutions, the Revenue, Probate Office and government departments on behalf of the estate.
- Protecting the Personal Representative
We help Personal Representatives protect themselves from the extensive and onerous legal duties the law imposes on them personally. Once a Personal Representative starts to act, he/she cannot withdraw without getting a Court order.
- Experience and Expertise
Established in 1991, we are an expert and experienced Probate firm. Our tried and tested procedures and IT systems enable us deliver prompt and efficient conclusions.
- Value and Valuing the Relationship
Our fee structure is competitive and flexible. We try to get to know our clients personally and gain a thorough understanding of their concerns. “People Deal With People”. Realising that the building of trust and partnership are crucial, we gear our costs towards the long-term relationship.
- Sensitivity and Respect
We know how important it is the affairs and wishes of the deceased are dealt with in a respectful and sensitive manner. We endeavour to ensure the legal process does not make a tough situation more difficult.
You should bring as much as you can of the following:
- The Will. If unavailable, a copy. If neither is available, we can still proceed.
- Death Certificate. This is available from the local Registry of Births, Marriages and Deaths. Usually we need three originals.
- Such of the deceased’s papers as you can find which are relevant to property, financial or related matters. These include books of account, certificates of ownership, title documents, insurance policies, bills etc.
- Funeral account, hospitality bill etc
- The deceased’s PPS Number
- Any social welfare book held by the deceased
- Names and addresses of the next of kin
- Details of the Deceased’s personal circumstances for example, marriage certificate, occupation, divorce order, children’s names and ages
If you cannot find everything just bring what you can and we will take it from there.
The estate will pass under the Rules of Intestacy set out in the Succession Act 1965 which, generally speaking, stipulate the following order of entitlement:
- Spouse and Children/Civil Partner and Children – generally two thirds to the surviving spouse/civil partner and one third equally between children.
- Great-Great Grandchildren
- Brothers and Sisters
- Nieces and Nephews
- Uncles and Aunts
- First Cousins/Great Uncles and Aunts / Great Nephews and Nieces
- Great-great Grandparents
If you are in a cohabiting relationship and your partner dies without making a Will, you have no automatic right to a share of his or her estate no matter how long you have been together. In such an event you may have to look at your options under the redress scheme for cohabiting couples.
Capital Acquisitions Tax (CAT) is comprised of Gift Tax, Inheritance Tax and Discretionary Trust Tax. The tax is charged on the taxable values of the gift or inheritance.
For the purpose of Gift and Inheritance Tax, the relationship between the person who provided the gift or inheritance (“the disponer”) and the person who received the gift or inheritance (“the beneficiary”), determines the maximum tax free threshold – known as the “group threshold”.
A beneficiary has three group thresholds. Each threshold relates to the relationship between the disponer and the beneficiary. The thresholds since 10 October 2018 are: –
Relationship to Disponer
Group A: Son/ Daughter
Group B: Parent*/ Brother/ Sister/ Niece/ Nephew/ Grandchild
Group C: All other relationships not covered above
* In certain circumstances, a parent taking an inheritance from a child can qualify for a Group (A) threshold
The thresholds are cumulative (as opposed to gift by gift or inheritance by inheritance) for all gifts or inheritances within the particular class taken since 5th December 1991.
When total gifts or inheritances to a beneficiary exceed the relevant tax free threshold, tax at a rate of 33% applies on balance of the gift or inheritance.
A number of exemptions and reliefs can be used to minimise CAT including:
- Spouse to Spouse and Civil Partner to Civil Partner exemption
- Surviving Spouse Relief
- Small Gift Tax exemption of €3,000
- Agricultural Relief
- Business Relief
- Dwelling House Relief
- Child to parent Relief and Exemption
- Favourite Niece/ Nephew relief
- Specialised tax advice may be needed
Taxation is often a major factor in this type of case and needs to be dealt with promptly to avoid interest, surcharges and penalties.
This is one of the exceptions to the rule that property passes according to the Will or the Rules of Intestacy.
Irrespective of what a Will may say a surviving spouse or civil partner is entitled to half of the estate where there are no children and one third of the estate if there are children. This is of the “net estate” i.e. all the estate “not ceasing on” a person’s death. This excludes from the net estate trust property, joint property passing by survivorship, property in which the deceased had a limited interest, and validly nominated property (e.g. credit union accounts, post office saving certificates, nominated pension schemes).
The spouse or civil partner may elect to take the legal right, the share bequeathed in a Will or to renounce his or her right to any share.
Children are entitled to be provided or in a prudent and just manner. This varies from case to case depending on age and circumstances.
Executors are under an obligation to notify surviving spouses or civil partners of the option to exercise the legal right share. Dissatisfied parties (which may include cohabitees) can make application to Court within certain time limits.
A surviving spouse or civil partner may claim the family or shared home to satisfy the legal right share. This is so even if the home was left to another person by Will. If the home is worth more than the legal right share, the surviving spouse or civil partner will normally have to pay the difference to the deceased’s estate.
In cases of hardship, the surviving spouse or civil partner may apply to Court to receive the home either without paying the difference or by paying such sum as the court deems reasonable. In certain circumstances cohabitees may be entitled to apply for redress.
At the time of writing, standard grants of representation take three to six months to extract.
The personal representative must distribute the estate as soon after death as is reasonably practicable. Generally, proceedings cannot be brought against a personal representative before twelve months have passed since the death. This is known as “the Executor’s Year”.
The time frame for obtaining a grant of Probate depends on the circumstances of each case and is influenced by:
- the nature and extent of the assets and liabilities
- the complexity or otherwise of the decisions that need to be made as to how to deal with them
- the tax affairs of the deceased
- the solvency of the deceased
- the number of beneficiaries and the availability of PPS numbers
- the residence of beneficiaries which is relevant to tax treatment as is the question of whether they have received previous inheritances and gifts
- the speed of outside agencies such as banks, insurance companies, government departments etc.
- whether the Estate is testate or intestate
- any difficulties identifying if a will was made or not or its validity
- any challenges to the Estate
Disputes can arise in several different ways. Disappointed family members, civil partners, cohabitees, heirs, beneficiaries or others may make claims for what they consider their entitlements or the validity of the Will may be challenged.
If you receive notification or a claim, have reason to expect a claim or simply want to know where you stand you should say nothing and consult Thomas Barry & Company immediately. We will respond quickly and can call back at a time suitable to you without obligation.
A person making a Will does not have unlimited freedom to leave his or her estate any way he or she wants. The law imposes a number of restrictions, especially as to the treatment of spouses, civil partners, cohabitees and children and these can override a Will.
Very strict format and signing requirements apply for Wills to be valid. Wills can be set aside if made under unsatisfactory circumstances such as undue influence, lack of knowledge and understanding or mental incapacity. They can also be set aside where someone shows that he or she was made a promise, relied on that promise and the promise is unfulfilled.
Claims can be made against negligent and/or fraudulent executors/administrators.
When it comes to contesting Wills the law is complex and strict time limits can apply.
If you are contemplating a claim or simply want to know where you stand you should say nothing and consult Thomas Barry & Company immediately. We will respond quickly and can call back at a time suitable to you without obligation.
You should seek our advice promptly as it is in your interest to have the facts recorded, to consult and be advised. Memory fades and stories and circumstances can change.
The purpose of the Inquest is to establish and publicly record the facts surrounding the death. The inquest is not allowed decide criminal or civil liability. When the proceedings have been completed, a verdict is returned in relation to the identity of the deceased, and how, when and where the death occurred. The range of verdicts open to the Coroner or jury include accidental death, misadventure, suicide, open verdict, natural causes and unlawful killing. When the inquest is completed, the Coroner issues a certificate so that the death can be formally registered. The Coroner decides which witnesses should give evidence at the inquest and the order in which they should give their evidence. Reports of inquests may be carried in national and local newspapers. In practice only a minority are reported.
Inquests are conducted in public. Only certain persons are entitled to be legally represented.
Since 1991, we have expanded and developed our practice areas. Using this experience and expertise we provide a tailored and effective service to help you reach a successful conclusion.