Wills and Probate

Probate in Ireland

Probate in Ireland is the process of distributing the assets of a deceased person to the parties they wish to benefit from their property on death or, if there is no will, according to the legal rules set down by law for dividing an estate between relatives of the deceased person. The completion of the probate or administration process is therefore the passing of legal ownership of the assets in the estate to the parties entitled to receive them. Beneficiaries are not entitled to receipt or possession of any part of the estate of a deceased person until the either a Grant of Probate (deceased has a will) or Letters of Administration (deceased has no will) has issued from the Irish Probate Office.The other legal role of probate is to collect the taxation due by beneficiaries, if any, payable on the value of the gifts or property they are receiving. The amount of tax will depend on their relationship to the deceased and the deceased’s date of death.

The application to the Probate Office is made by the party appointed in the will to administer the estate called the Executor. The Executor or executors carry the responsibility of ensuring that not only does Probate issue from the Probate office but also that the estate is then administered correctly according to the terms of the will. In the case of deceased parties with no will, there are specific for how the estate should be distributed. The role of the Executor in this case is called an Administrator. It is always advisable therefore to have the guidance, assistance and oversight of an experienced probate solicitor in Ireland. The solicitor will be paid out of the estate. Appointing such a solicitor moves the burden from an Executor or Administrator to the professional with the experience to ensure matters are properly dealt with.

A number of issues can arise with wills and probate in Ireland that require the careful oversight of your probate solicitor such as:

• The legal right share of a spouse of the deceased person
• The correct calculation of the values of the deceased’s person estate at the relevant valuation date
• The estate may need to deal with debts of the deceased
• Issues over the integrity of the will itself or questions as to its validity may come up owing to the state of mental capacity of the Testator at the time the will is made.
• If the will covers property in Ireland and other jurisdictions matters of taxation in each country have to be addressed and indeed the Irish will may need to be “proved” in that country. A separate grant of probate or equivalent application may need to follow the Irish grant.
• If the will makes no provision for children, step children or foster children of the deceased, it is vulnerable to a Court challenge to force a redistribution of the gifts in the will for failure to make “adequate provision” for those children.
• In addition Executors are obliged to distribute the assets as soon as possible after the death of the testator. A failure to administer in a timely fashion may result in the Executor being sued by the beneficiaries in the estate. If there are no complexities such as litigation or foreign properties, the executor’s duty is to distribute the estate within a year.

Executors are further under a general duty of care to the assets in an estate until they are distributed. They must where possible protect the assets from devaluation. One such duty is to have all property and assets insured. The experienced probate solicitor will be able to navigate these complex issues for the executors in any estate.

The functions of the Probate Office in Ireland include following:

• Prove wills for probate or condemn wills not properly executed.
• Issue Grants of Probate and Administration.
• Issue citations and subpoenas in the case of an estate
• Receive and register cautions again an estate by parties intent on preventing the grant issuing pending the completion of litigation distributing some aspect of the will or the administration

When it comes to preparing and administering wills in Ireland the importance of a relationship with an experienced professional cannot be understated. The complexities and problems that can arise in the administration of an estate can result in personal liability of the Executor or Administrator. The members of the Abacus Legal Network have been carefully selected for not only their expertise but their proven track record in the area of Probate in Ireland. We have members in your area ready to assist.