Probate is the process by which a Deceased’s assets are dealt with after death. Assets may be real property (land and buildings) or bank accounts, life policies etc.
Why do I need a Grant of Probate?
A Grant of Probate is the document issued by the Court which allows the Executor to deal with the estate, e.g. close bank accounts or transfer property.
If there is property involved it is not possible to have the property sold or registered in another name without a Grant of Probate. If there is no property and the total value of the estate is in excess of €25,000, the bank or other financial institution will insist on receiving a Grant of Probate.
Who may apply for a Grant of Probate?
The Executor(s) named in the will are the person(s) who are entitled to apply for a Grant of Probate.
If there is no will the Deceased is referred to as having died Intestate. In this case there is no Executor and the person who applies to administer the estate is known as an Administrator and the document is known as Letters of Administration.
An Executor is usually a beneficiary though not necessarily so. In a case where the beneficiaries of an estate are minor children the Executor will usually be the children’s trustees. The collective term for an Executor or Administrator is a Legal Personal Representative.
What is the function of a Legal Personal Representative (LPR)?
The LPR’s responsibilities are:
- To gather details of the Deceased’s estate e.g. location of property, details of bank accounts, life policies, details of any debts, details of funeral and testamentary expenses;
- To apply to the Probate Office for a Grant of Probate/Letters of Administration as the case may be;
- To gather details of all the beneficiaries including addresses, PPS numbers and details of any prior gifts or inheritances taken;
- When the Grant has issued the LPR must then divide the estate, pay any debts or expenses and arrange the transfer/conveyance of any property.
- The LPR is personally liable to all the creditors and beneficiaries of the deceased to the amount of the estate that was administered or could have administered if the LPR had acted properly.
What happens if there is no will?
If the Deceased died without having made a will or without a valid will the Deceased is known to have died intestate. Obviously there is no Executor so who is the person responsible for looking after the Deceased’s estate?
There are strict rules used to determine who may apply to administer an intestate estate and these are set out in the Succession Act.
Essentially ‘the Grant follows the interest’ and this means that the beneficiary of an intestate estate is the person who must apply for the Letters of Administration.
In the event of one’s spouse dying intestate it is the widow(er) who must apply and in the event of a parent it is the surviving children and so on.
What happens if the Executor does not wish to act?
Nobody can be forced to act as Executor/Administrator.
In the event that a named Executor or the relevant beneficiary does not wish to act he/she may sign a document known as a Deed of Renunciation which allows that person to ‘step back’ from the responsibilities of administering an estate. If the Executor is also a beneficiary it does not affect that person’s inheritance.
What documents are required to apply for a Grant of Probate/Letters of Administration?
As part of the Probate application it is necessary to complete an Inland Revenue Affidavit which provides a ‘snapshot’ of the estate as of the date of death.
Among the details required are:
- Deceased’s date of birth
- Death Certificate
- Deceased’s PPS number
- Beneficiary(s) PPS number(s)
- All bank accounts, life policies, investments
- Details of all property held jointly by the Deceased and others
- Details of any foreign property
What happens next?
Once the Grant has issued it is sent to the various financial institutions which will then close the accounts. The funds are then distributed amongst the beneficiaries. If there is any property involved the Executor then signs the documents necessary to transfer the ownership of the property.
What happens if the Executor wishes to sell the house but the Grant has not issued?
It is quite common for a house to be sale agreed before the Grant of Probate has issued. In this instance contracts are signed and exchanged as usual and there is a special condition inserted in the contract to the effect that the closing date will be seven days after the date of the Grant of Probate.
Will I have to pay tax on my inheritance?
This depends on from whom the inheritance is received i.e. the relationship between the two parties. There is no tax between spouses and there are different thresholds depending on the nature of the relationship, e.g. parent-child, aunt, nephew, strangers-in-blood. It is also dependent on whether or not you have taken a gift/inheritance already from that source.