Probate: sorting out the will and the estate

Probate – the loss of a family member is a most stressful time for a family it is important to seek proper legal assistance in administering the affairs of a Deceased loved one.  This applies whether the person has died leaving a Will (what is called Probate) or without making a Will (which is called intestacy)

 

There are a number of issues of concern to family members, Executors/ Administrators and Beneficiaries immediately following the death of family members or friends. We can attend to the legal formalities following the death of a family member:

• Arranging with the deceased's bank for prompt payment of the funeral expenses
• Gathering information, calculations for the completion of Revenue Returns prior to the application to the Probate Office
• Application for Grant of Probate in cases where a person dies having made a will
• Application for Grant of Administration in cases where a person dies without having made a will.
• Examination of rights of those entitled to the property of the deceased
• Examination of rights of spouse and rights of children arising as a result of the deceased having made a will or having died intestate
• Completing probate tax and inheritance tax returns
• Sale of assets and distribution of net proceeds

 

Set out below is a brief outline as to how Estate Administrations are conducted in accordance with the Succession Act 1965.

 

Grant of Probate/Administration

If a Will has been made, then the Solicitors on behalf of the Executor will apply to the Probate Office to obtain a Grant of Probate so that the deceased's estate (property)can be distributed according to his will. Where there is no will a Grant of Administration is applied for.

 

Prior to the application to the Probate Office information must be gathered together with calculations and projections for submission of Revenue Returns.

 

In cases where property is held in Joint Names or where the assets of the Estate are below a certain value, it may not be necessary to carry out a full Administration.

 

Revenue Returns - Probate Tax and Inheritance Tax

Documentation is prepared by your/Solicitor for submission to the Revenue Commissioners which sets out the value of all assets and debts of the deceased and valued at the date of death. Details of all beneficiaries and the estimated value of inheritances for the assessment of any tax liability are also set out.

 

Tax implications for beneficiaries

Each beneficiary of a Will must be notified that they have to contact the Revenue Commissioners within four months of the 'Valuation Date' of their inheritance in order to make an Inheritance Tax Return. Contact details of all beneficiaries should be provided to the Executors/ Administrators as soon as possible so that they can be notified of the approximate value of their inheritance.

 

If any tax liability is not met by the Estate (in the case of Probate tax) or by the beneficiaries (in the case of Inheritance Tax), the Executor/Administrator must meet all tax liabilities. As a result, no money or assets are released to beneficiaries until Tax Clearance Certificates are obtained.

 

On receipt of these certificates, further documentation is prepared for submission of an application to the Probate office.

 

Time-scales

Depending on the flow of work, both the Revenue Commissioners and the Probate Office process these applications relatively quickly. However, as much of the work surrounding the administration of an estate involves your solicitor dealing with outside agencies (e.g. Banks, the Department of Social Welfare, Valuers and Estate Agents etc.) it is difficult to give firm estimates on the precise time-scales involved.

 

If the Probate office requires clarification of any issue in a Will, it may be necessary to trace witnesses and have them assist your solicitor in answering these queries. Happily cases such as these are the exception rather than the rule and most Probates are concluded within a nine month period from your solicitor receiving all relevant information.

 

Twelve months for administration

An Executor/Administrator has 12 months from the date of death to deal with the administration uninterrupted. After that time frame, the beneficiaries will be entitled to query delays and may apply to carry out the administration themselves if they feel that the existing Executor/Administrator is not performing adequately.

 

Once the Grant of Probate/Administration is issued from the Probate Office, it is sent to the various financial institutions and the assets of the estate are collected. These assets are then distributed in accordance with the Will (if one exists) or in accordance with the rules of intestacy (where there is no Will) which are contained in the Succession Act 1965.

 

EXECUTOR/ADMINISTRATOR CHECK LIST

 

Basic Information and documents required:

• A copy of the death certificate of the deceased
• A copy of the funeral account i.e. funeral, burial and undertakers expenses
• The original Will and any amendments or attachments if any OR
• Where there is no Will, a list of all next of kin of the Deceased:- To include: spouse, children, parents, brothers/sisters, nieces/nephews. Relatives who pre-deceased the deceased must also be disclosed.
• The addresses of all beneficiaries/Next of Kin
• The occupations and RSI (PPSN) tax numbers of all beneficiaries/next of kin
• A list of Assets of the Deceased including property, bank accounts, Credit Union accounts, Post Office accounts, shares held, bonds, cars etc.
• Details of debts of the Deceased to include funeral expenses, outstanding loands, credit card bills etc.
• Details of the Deceased's RSI (PPSN) tax number
• Details of the Deceased to include: His/Her address and former addresses, occupation, date of birth, marital status. If Separated/Divorced, contact details of former spouse. Whether they lived in Ireland or abroad. Number of children, etc.
• Details of previous bequests/inheritances to the deceased.
• Evidence of property ownership e.g. title deeds to house, mortgage, bank books/lodgement slips etc.