probate - FLAC · You can read more about this area in FLAC's Wills and Intestacy leaflet. What is...

July 2014

probate

FLAC Legal PROBATE_Layout 1 27/06/2014 09:35

You can read more about this area in FLAC'sWills and Intestacy leaflet.

What is Probate?

Probate is a legal process that allows theauthorised or named person to deal with adeceased person’s assets (also known as his orher 'estate'), which means the property,money and all possessions owned by him orher at the time of death. Usually a person willwrite down what he or she wants to happento his or her assets in a document called a will.Probate usually involves first establishing thatthe will is valid (called 'proving' the will) andthen carrying out what it requests.

Who carries out probate?

The authority to deal with a person's assets isgiven in the form of a document knowngenerally as a grant of representation, issuedby the Probate Office. The type of grantdepends on whether the deceased person lefta will or died without a will (intestate).

If the person leaves a will, he or she willusually name a person or preferably twopersons as executors to be responsible forcarrying out its terms. In some cases, thedeceased person may not have named anexecutor or may not have left a will, and sothe type of grant varies depending on thesituation.

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What are the types of Grant?

1. Grant of Probate: If a person dies with avalid will and has appointed executors, thenthe executors will get a grant of probate forthe dead person's estate from the ProbateOffice. They must handle the person’s assets asspecified in the will. The executors have thefirst right to ‘prove’ a will, that is, establishthat the will is valid so that it can be carriedout. Any one of two or more executors canapply for the grant of probate, or they mayapply jointly.

Although he or she has the first right to provethe will, if an executor does not wish do so,he/she can renounce or reserve the right.

2. Grant of Letters of Administration: Thiswill be granted if a person dies without avalid will, also known as intestate. The assetsare dealt with by a person known as anadministrator, rather than an executor. Thepeople entitled to become an administratorare usually one or more of the nearest livingrelatives.

3. Grant of Letters of Administration withWill Annexed: This will be issued if a persondies with a valid will and a person other thanthe executor is applying for the grant. If theexecutor is unwilling or unable to act, or hasdied, or the will does not appoint an executor,


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then this grant will be given. The usualapplicant is whoever is entitled to the residue,which is whatever remains in a person’s estateafter all other debts and gifts have beensettled.

When is a Grant necessary?

l If a person dies leaving behind a propertyor land in his or her name (as the soleowner), then it is necessary to apply for agrant of representation so that theproperty/land can be sold or transferredinto the name of another person.

l If a person dies leaving a house and/orland owned jointly with another person,then it depends on the type of jointholding as to whether that house and/orland automatically passes to the survivingperson. If it is a joint tenancy, the survivingparty will automatically inherit on thedeath of the other party and no grant ofprobate or administration is required totransfer the property. If it is a tenancy incommon, the surviving partner does nothave any automatic right to a share andthe deceased person can bequeath his orher share to any beneficiary/beneficiariesin the will.


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l If a deceased person has left money in abank or other financial institution, then aGrant of Representation may be required.The institution in question should becontacted by the executor or next of kin toestablish what is needed.

l If a person dies leaving money in a jointname account, then a grant may benecessary due to the fact that the moneymay not automatically pass to thesurviving account holder. This is a legallycomplex area involving such issues as theterms of the bank contract, what you andyour joint holder intended in setting upthe account and how much you eachcontributed to the account. It is especiallycontentious where the joint accountholder is not your spouse or child. It istherefore very important that you leavespecific written instructions in your willand to the other joint account holder as towho will inherit your share of a jointaccount, taking into account the issuesmentioned above.

l It may not be necessary to apply for agrant where a person has died leaving noassets. Also, if a person dies leaving arelatively small amount of money in anaccount, for example less than €5,000, thebank may not require a Grant ofRepresentation to release the funds. Youwill need to check with the bank in anycase.


l If someone living outside the Republic ofIreland dies leaving assets within theRepublic then, depending on the value ofthose assets, an Irish grant may berequired to deal with these assets,regardless of whether or not a grant hasissued in a foreign country.

l If a person living in Ireland has assetsabroad, it may be necessary to get aseparate grant for these foreign assets.

What if I don’t approve of something inthe probate process?

You are free to lodge an objection called a‘caveat’ with the District Probate Registry orthe probate Office if you have an interest inthe estate in question, you are unhappy withprobate process or have another concern todo with the grant of probate/administration.

What is the Deed of Assent?

If there is real or leasehold property (houses,apartments, land etc.) in the deceased’s name,then a Deed of Assent must be executed (orcarried out) by the executor/administratorafter the grant has been issued. This is awritten document setting out the transfer ofthe real or leasehold property to thebeneficiary. You will need to get help from asolicitor to do this.

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How can I apply for Probate orAdministration?

There are two ways of proceeding with anapplication:

1. Employ a solicitor to undertake theprocess for you - this may even benecessary and advisable in certaincases. You can enquire in advance as tohow much the probate process maycost, but note that where there arelegally complex matters involved, thesolicitor may not be able to make anexact estimate.

2. Apply in person yourself, through thePersonal Applicants Section of theProbate Office or one of the DistrictProbate Registries. You can apply to theDublin Probate Office for a grantwhere a person has died anywhere inIreland, or abroad. To apply to one ofthe District Probate Registries, thedeceased person must have had a fixedplace of abode within the jurisdiction(area of responsibility) of that registry.

Personal applications for Probate /Administration

This may be done by writing to the DistrictProbate Registries. For the Probate Office inDublin, an applicant must go in person (seeaddress below). The Probate Office will assistyou to execute the will in person.


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The Probate Office has the discretion to refuseto allow a personal applicant to beaccompanied by an advisor. It can also refuseto allow a personal applicant to continue withan application that had already been initiatedby a solicitor.

Note: It is most important to keep theoriginal will in a secure place.

A personal applicant seeking to execute awill must take the following steps:

a) Obtain an application form forpersonal applicants from the ProbateOffice or District Probate Registry.

b) Fill out this form by giving details ofbank/post office/building societyaccounts, property, assets, stocks, sharesand any debts of the deceased. At thisstage you are giving generalinformation obtained from anydocuments the deceased left about hisor her financial situation. Furtherdetails can be added later on as theycome to light, or might be pointed outat the interview stage below, and youwill be told how to set about obtainingfurther information.

c) Return the completed form to theProbate Office. A personal applicantwill then receive an acknowledgementand an appointment for a preliminary


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interview. More than one appointmentmay be required.

d) Attend the interview in person,bringing along the death certificate,the will and any other papersrequested by the Probate Office.

e) Sign the documents and swear theOath for Executor or Administrator.

f) Bring a completed Inland RevenueAffidavit to the Revenue Commissionerfor clearance for Capital AcquisitionsTax purposes. You can download thisform (CA24) from the Revenue website(www.revenue.ie). Note that the CA24is an extremely long and complex form- about 20 pages - and two copies mustbe filled out. It requires details of thesolicitor acting for you or your details ifyou are applying in person, as well as aschedule of assets, which sets out allassets and debts, joint tenancies and soon involved in the estate.

g) Pay the court probate fee (which isdetermined by the value of the estate).

h) If the deceased had any means-testedsocial welfare payments, then you mustsend a copy of the schedule of assets tothe Department of Social and FamilyAffairs to confirm that there is no claimagainst the estate – a personal


representative may be liable for thisotherwise.

i) Once the Registrar of the Probate Officeis satisfied that the will is valid and thatthere are no caveats (objections)entered against it, then probate will begranted. Where there is no will, a Grantof Administration will be issued.

j) If problems arise, for example, if theoriginal will is missing or the signaturesare questionable, then the Registrarmay ask for sworn statements fromwitnesses.

k) Where a dispute arises about the willor about probate (between twobeneficiaries, for example, or betweenthe executor and another person) thismatter must be dealt with by the HighCourt judge in charge of probatematters. The High Court can direct thatthe matter be dealt with by the CircuitCourt in certain circumstances.

l) It is advisable to get certified copies ofthe Grant of Representation from theProbate Office, as certain institutionssuch as banks, the Post Office or thePrize Bond Office may require them torelease funds.

m) Remember that a deed of assent isneeded to transfer any land or house inthe estate. You will need a solicitor asthis deed will transfer ownership.

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What happens if the executor fails to act?

An executor is generally obliged to distributethe assets of the deceased person as soon asreasonably possible after death. A beneficiarymay take action against an executor who failsto distribute the assets within one year of thedeath. An executor is not obliged to show thewill to the beneficiaries. However the willbecomes a public document after the grant ofprobate.

Is there any tax liability on a deadperson's estate?

Beneficiaries may have to pay CapitalAcquisitions Tax (CAT) if the amount of thebenefit – combined with any other benefitpreviously taken – is over a certain threshold.The thresholds vary depending on what thefamily relationship is with the dead person.Inheritances from parent to child and usuallyfrom child to parent have a higher thresholdthan those between other relatives. Spousesand civil partners are exempt from inheritancetax. Inheritances from distant relatives or non-relatives have a lower threshold.

Deadlines: Under the Finance Act 2010, anyperson who inherits on the death of anotherperson is responsible for paying his/her CapitalAcquisitions Tax before the relevant deadline.(However, if the person who gets a benefit isliving outside the state, then the

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executor/administrator or his/her solicitormust act as agent in dealing with the taxliability.) The relevant payment date is either31 October of the same year where theinheritance is received between 1 January and31 August, or 31 October of the followingyear where it is received between 1September and 31 December.

If you miss the deadline for paying your tax,you will have to pay interest on the amountowed starting from the valuation date. Notethat any payments you then make will first gotowards paying off the interest, before thetax you actually owe.

Valuation date: The valuation date is thedate on which the market value of the assetbeing inherited is calculated. This may be thedate of death, the date of grant of probate orthe date of transfer to the beneficiary,depending on the circumstances. See more athttp://www.revenue.ie/en/tax/cat/guide/valuation-date.html

Tax rates: The standard rate of tax is 33% inrespect of gifts and inheritances taken on orafter 6 December 2012.


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YEAR

Group A

Group B

Group C

(Son/Daughter)*

(Parent**/Brother/Sister/Niece/

(Relationship other than

(after indexation)

Nephew/Grandchild)

at A/B)

(after indexation)

(after indexation)

On or after

06/12/2012

€225,000

€30,150

€15,075

*Includes children of civil partners

**In certain circumstances a parent taking an inheritance from a child can qualify for Group A threshold.

These thresholds change regularly and you can find up-to-date figures online at http://bit.ly/cat_thresholds.


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Are there any exemptions to CAT?

The tax exemption of Dwelling-House Reliefmeans that a person who receives a gift orinheritance of a dwelling house will not haveto pay Capital Acquisitions Tax on it, providedthat:

l He/she has lived in that house for threeyears prior to the date of the gift /inheritance.

l After the date of the gift/inheritance,he/she is not beneficially entitled, in wholeor in part, to any other dwelling house,does not own or co-own another house.

l At the date of the gift/inheritance of thathouse, the person continues to live therefor a period of 6 years, unless they are 55years or over.

Where can I get further informationabout CAT?

Questions about inheritance tax and probatemay be made by emailing [email protected] by phoning the Revenue’s taxpayerinformation unit on LoCall 1890 201104.

You may also find out about thresholds forCAT which is levied on gifts and inheritanceson the Revenue Office’s websitewww.revenue.ie


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What happens if the deceased person hasleft debts behind?

Where a person dies leaving debt behind, hisor her relatives are not responsible formeeting the debts (unless they have stood asguarantor for these debts). However, theadministrator/executor is responsible fordischarging funeral expenses, debts andliabilities from the deceased person's estate.

What if the deceased was in receipt ofsocial welfare payments?

If the deceased person wasreceiving a means-tested socialwelfare assistance payment suchas a non-contributory statepension or Disability Allowance,then before distributing theestate, the executor is legally obliged toinform the Minister for Social Protection ofthe death.

At least three months in advance ofdistributing the estate, the executor, aspersonal representative of the deceasedperson, must provide the Minister with thefollowing documents:

l written notice of his/her intention todistribute the assets of the estate; and

l a schedule of the assets of the estate.

Social Welfare(Consolidation)Act


Failure to comply may mean prosecution andthe executor maybe personally liable for anyrepayment due.

The funeral and legal expenses for which theestate is liable are first deducted from theoverall estate value and then recovery of theoverpayment will be sought. TheOverpayments Officer will decide whether torecover it as a lump sum or in instalments.

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Useful addresses:

Probate Office

First Floor, 15-24 Phoenix Street NorthSmithfield, Dublin 7Tel: 01-888 6174 / 888 6728

District Probate Registries

There are 14 of these registries and they arelocated in local Circuit Court offices. If thedeceased lived in Dublin, Meath, Kildare orWicklow, the application must be made to theProbate Office in Dublin. Outside these areasapplications can be made to either theProbate Office in Dublin or the local ProbateRegistry.

A list of locations and contact details forProbate Registries can be found online bygoing to www.courts.ie and looking under‘Offices and Maps’ for ‘Probate OfficeBusiness’.


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Legal Aid

You may be eligible for legal aid if you are aperson of moderate means. To qualify forlegal aid in civil cases your disposable incomeand assets must be below a certain limit, theremust be merit to the case and there must beno other satisfactory way of resolving theproblem. After approval, the Legal Aid Boardprovides you with the services of a solicitorand, if necessary, a barrister. You can apply forlegal aid for more than one matter at a time.The Board’s offices are called Law Centres andare located around the country. For thelocation of your nearest Law Centre, call 1890615 200.

All those who are granted legal advice and/orlegal aid must pay a fee called a contributionto the Board. The minimum contribution is€30 for legal advice and €130 for legal aid.Law centre staff will advise what a person’sactual contribution will be as each person isassessed on an individual basis

Before you qualify for legal aid, you must firstsatisfy a means test. Your disposable incomemust be less than €18,000 and your disposablecapital cannot be more than €100,000.

If you are in receipt of allowances, they willbe taken into account and they are deductiblewhen calculating disposable income. Themaximum allowance on childcare facilities ifyou are working is €6,000 per child per year


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and the maximum allowance on accom moda -tion costs (e.g. rent) is €8,000 per year. ThePublic Service Pension Related Levy and theUniversal Social Charge are now alsoconsidered and are deductible for thepurposes of assessment.

The value of an applicant’s home and itsnormal contents are excluded when assessingthe value of his/her capital resources(property). If your capital resources exceed€4,000, you must complete a Statement ofCapital.

For further details on financial eligibilityrequirements or for details of otherallowances, contact your local Law Centre. Afull list is available at www.legalaidboard.ie.FLAC has prepared a guide to the state legalaid system which you can download atbit.ly/CLAflacsheet.


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Need more information?

Legal information leaflets are also

available from FLAC on a variety of

other areas of law. They are free to

download as PDFs from the FLAC

website or in print from your local

FLAC centre or Citizens Information

Centre.


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FLAC Mission Statement

FLAC (Free Legal Advice Centres) is a human rightsorganisation which exists to promote

equal access to justice for all.

FLAC (Free Legal Advice Centres) is a human rightsorganisation which exists to promote equal accessto justice for all.

While every effort has been made to ensure theaccuracy of this leaflet, it is provided for generallegal information only and is not intended as asubstitute for legal advice. The information itcontains is correct as of date of publication. FLACdoes not accept any legal liability for the contentsof this leaflet. People with specific legal problemsshould consult a solicitor.

FLAC is grateful to John Costello, solicitor, for hishelp in updating and revising this leaflet.

FLAC offers free, confidential basic legal informationvia its lo-call telephone information line at 1890350 250 and one-to-one legal advice through itsnetwork of voluntary advice centres countrywide –www.flac.ie/help

This publication was supportedand part-funded by the Citizens Information Board

© FLAC – Free Legal Advice Centres, July 2014

LoCall: 1890 350 250 | www.flac.ie

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