Probate is a complex legal process that relates to matters associated with a deceased person’s assets. If you are the executor or beneficiary of a will you will have to deal with probate. You are advised to consult a solicitor to guide you through the process.
What is probate?
Probate is the legal mechanism used to manage a deceased person’s assets. According to Irish probate, the authority to administer a deceased person’s assets is provided in the form of a document, which is known generally as a grant of representation. Probate involves establishing in court that the deceased person’s will is “proved” as their true last testament. If there is no will, the estate is settled according to the laws of intestacy.
How much does probate cost?
If you are an executor (if there is a will) or an administrator (if there is no will) of the deceased’s estate, you you will be responsible for choosing a solicitor to help you apply to the Irish Probate Office for a Grant of Probate or Grant of Administration so that you can gather in the assets of the deceased person, pay any debts and expenses, and distribute the balance of the estate among the beneficiaries.
You should agree a fixed probate fee with the probate solicitor at the start of instruction. Probate fees can be as much as 1% to 2% of the value of the assets. The fee is paid from the estate, ahead of the distribution of the remaining inheritance.
Can you get probate if there is no will?
If you die without making a valid will, you are considered to have died intestate. This means that your estate will be distributed according to the law of succession, which is set out in the Succession Act 1965.
Intestacy Rules
If you die without making a valid will and you leave behind:
- A spouse or civil partner but no children (or grandchildren), your entire estate goes to your spouse or civil partner
- A spouse or civil partner and children, two-thirds of your estate goes to your spouse/civil partner and the remainder is divided equally among your children. If one of your children is deceased, their share goes to his/her children.
- Children, but no spouse or civil partner, your estate is distributed equally among your children (or their children).
- Parents, but no spouse, civil partner or children, your estate is distributed equally between your parents or given to the surviving one if the other has died
- Siblings only, your estate is divided equally among them, or to their children, if they are deceased
- Nieces and nephews only, your estate is shared equally among those surviving
- Other relatives only, your estate is distributed equally between the closest equal relations.
- No relatives, the State receives your estate
Duties of an executor
1. If you are named as the executor of a will, your first duty is the burial or cremation of the deceased's body.
2. You must then take out Probate, which involves getting the Probate Office or the appropriate District Probate Registry ro certify that:
- The document is a valid will.
- All legal, financial and tax issues are in order.
The provisions of the will can only be carried out when the Probate Office validates the will. This means the will has been “proved.” The Probate Office will do some research before making its decision. This may involve taking a sworn affidavit from witnesses.
3. The executor must find out all outstanding debts and liabilities. and ensure that there are no claims outstanding against the Estate.They must also determine who all of the beneficiaries are.
4. A schedule or list of all the assets and liabilities of the deceased must then be prepared.
5. Once probate is issued, the executor may then collect all the deceased's assets and determine whether to sell or retain any assets not allocated specifically to named beneficiaries.
6. The executor must pay debts and expenses and manage taxation issues
7. Finally, the executor must complete an administration account including all monies received and distributed during the administration period and send it to any relevant beneficiaries.
8. Executor duties are for life, so if any assets are discovered after the distribution of the estate these must be disposed of.
International Probate
When someone dies, the process of managing their estate is called probate. This covers managing their property, paying inheritance tax, and distributing inheritance. International or probate occurs when the deceased lived in one country but owned assets elsewhere. This applies to:
- Foreign nationals with assets in Ireland
- Irish nationals with assets abroad
- Expats with assets in Ireland
People living in Ireland who are tax-domiciled overseas
The range of international laws and taxes means that international probate can be very complex and time-consuming. A detailed knowledge of international estate and tax law is required to successfully administer an international estate.
Probate sale conveyancing
Probate sale conveyancing involves selling a person's property after they die. Managing a loved one’s legal affairs after they have died is stressful, and it is advisable to consult a solicitor to help you with the process. A solicitor will advise you on:
- Grant of Probate, which you need to sell the property
- Deed of Assent, which you need to transfer the property
Probate conveyancing differs substantially from other property transactions. One difference is the fact that you need a Grant of Probate to sell the deceased's property. You may also have to deal with disputes with the will, as well as any debts outstanding that the sale of the property is intended to address. It is not an easy process, so you will need appropriate advice to guide you through it.
What rights does a beneficiary have?
If you are named as a beneficiary in a will, your legal rights to your share of the inheritance come into effect only when the estate has been distributed. However, before that happens, you do have a right to information, so you can be updated on the administration of the estate. The executor of the will has discretion over the information they divulge to beneficiaries, but it is considered good practice to make the process transparent. From the outset, the executor should agree with you how frequently they will provide updates and stick to this schedule throughout the administration process.
After a Grant of Probate has been issued and the administration is in progress, the executor is required to keep accounts of the estate and be prepared to reveal these if you request them. If you are concerned that an executor is not being as forthcoming as you believe they should be, a solicitor can help you to request to see the accounts. If you believe the executors are mismanaging the estate, you are also entitled to take formal legal proceedings against them.
