Wills & Probate
Probate
There are two ways in which a person’s estate on death can be distributed;
1. Will (Testate)
2. Intestate (No will)
An “Estate”?
A deceased’s estate consists of whatever assets (e.g. bank accounts, stocks and shares, house, land, livestock, jewellery, car, etc.) can be passed on to beneficiaries following the deceased’s death.
How does the estate pass on to the beneficiaries?
The assets which make up the deceased’s estate can pass on death in a number of ways. Assets left by will pass to the beneficiaries in accordance with the terms of the will. If there is no will (a situation known as intestacy), assets that would otherwise have passed by will pass instead under special rules laid down by law. In addition assets can also pass outside of the will or intestacy.
Assets passing under the will or intestacy?
In order to get legal confirmation of his or her appointment, the Personal Representative must apply to the Probate Office of the High Court for a document known as a Grant of Representation. The Grant of Representation acts as an assurance to financial institutions that they can safely place the deceased person’s assets in the hands of the person name in the grant. The Grant of Representation is also known as a Grant of Probate (where there is a will) or Letters of Administration (where there is no will).
Special additional procedure relating to money in joint names?
In the absence of a letter of clearance from the Revenue Commissioners, banks, building societies and other financial institutions are prohibited by law from releasing monies (other than current accounts) lodged or deposited in the joint names of the deceased and another person or persons. This applies if, at the date of death, the total of all the amounts standing with the institution in the joint names of the deceased person and another or others exceeds €50,000. It does not apply, however, to monies which have only been held in the joint names of the deceased person and his or her surviving spouse or surviving civil partner. Applications for letters of clearance for production to financial institutions should be made to the deceased person’s Revenue.
Family Home
If the family home is held by both spouses/civil partners as joint tenants, the surviving spouse/civil partner automatically inherits the deceased spouse's/civil partner's interest. In the case of a cohabiting couple where the family home is held as joint tenants, the surviving partner automatically inherits the deceased partner's interest but may be liable for inheritance tax, unless the surviving partner qualifies for dwelling house exception. Where both die at the same time so that it is not possible to say who died first, property held as joint tenants is divided equally so as to form part of each of their estates. The surviving spouse/civil partner may require that the family home be given to him/her in satisfaction of the legal right share or the share on intestacy. If the family home is worth more than the legal right share then normally the spouse/civil partner would have to pay the difference into the deceased's estate. However, the surviving spouse/civil partner may apply to the court to have the dwelling house given to him/her either without paying the difference or by paying such sum as the court thinks reasonable. The court may make such an order if it thinks that hardship would otherwise be caused either to the surviving spouse/civil partner or to a dependent child.
The legal right share
If there is a will and the spouse/civil partner has never renounced their rights and is not "unworthy to succeed", then that spouse/civil partner has a right to what is called a "legal right share" of the deceased's estate.
If you find that your spouse/civil partner has made a will that does not recognise your legal right share, you may still claim your right.
Cohabiting Couples have no legal rights to each other's estates but may be able to apply for redress when one of them dies. A church annulment has no legal status and and doe not change the status of a spouse. Cohabiting couples may, of course, make wills in favour of each other but such wills may not negate the legal right share of a spouse/civil partner.
A Personal Representative, is responsible for settling any outstanding tax matters for the period up to the date of death. If a person dies without having made a will or if the will is invalid for whatever reason, that person is said to have died "intestate". If there is a valid will, but part of it is invalid then that part is dealt with as if there was an intestacy. The rules for division of property on intestacy are as follows:
If the deceased is survived by;
Administrator: Person responsible for finalising a deceased’s affairs.
Beneficiary: Person entitled to benefit, i.e. gift or inheritance.
Codicil: An instrument executed by a testator for adding to, altering, explaining or confirming a will previously made by him/her.
Death benefit: Monies payable on the death of a deceased, e.g. superannuation, insurance policy, lump sum.
Disponer: Person who provided the gift or inheritance.
Estate: All assets, e.g. house, land, bank accounts, stocks & shares, livestock, jewellery, car etc. of a deceased person.
Executor: Person authorised by a will to finalise a deceased person’s affairs and distribute his/her estate. The executor has authority to act from the date of death. Any other personal representative has authority to act only when a Grant of Administration is obtained.
Grant of Probate: Grant of representation where there is a will.
Grant of Representation: In order to get legal confirmation of his or her appointment, the personal representative must apply to the Probate Office of the High Court for a document known as a Grant of Representation. The Grant of Representation acts as an assurance to financial institutions (e.g. banks, building societies, credit unions, etc.) that they can safely place the deceased’s assets in the hands of the person named as personal representative in the grant.
Inland Revenue Affidavit: An account of the deceased’s person’s assets, liabilities, beneficiaries etc.
Intestacy: Dying without leaving a will.
Legacy: Personal property passing under a will.
Letters of Administration: A grant of representation where no will exist.
Nomination: Nominated property is any property which the deceased placed in the name of another person their benefit on his/her death. Nominated property passes directly to that person in accordance the rules/regulations under which it was invested and it does not pass to the deceased’s personal representative to be distributed according to the will/intestacy.
Personal representative: The person responsible for finalising the deceased’s affairs.
Power of Attorney: A formal instrument by which one person empowers another to represent him/her to act on their.
Probate Office: An office within the Court Service under the jurisdiction of the High Court whose function it is to issue Grants of Representation
Survivorship: The right of a person to property by reason of having survived another person who had an interest in it, e.g. on the death of a joint tenant the survivor inherits the property.
Strangers in blood: Persons who have no tie between them by blood or valid marriage.
Testator: Person who makes a will.
Trustee: Person who holds property on trust for another.
Will: A declaration by which the person (testator) making it provides for the distribution of his/her property after his/her death.
1. Will (Testate)
2. Intestate (No will)
An “Estate”?
A deceased’s estate consists of whatever assets (e.g. bank accounts, stocks and shares, house, land, livestock, jewellery, car, etc.) can be passed on to beneficiaries following the deceased’s death.
How does the estate pass on to the beneficiaries?
The assets which make up the deceased’s estate can pass on death in a number of ways. Assets left by will pass to the beneficiaries in accordance with the terms of the will. If there is no will (a situation known as intestacy), assets that would otherwise have passed by will pass instead under special rules laid down by law. In addition assets can also pass outside of the will or intestacy.
Assets passing under the will or intestacy?
In order to get legal confirmation of his or her appointment, the Personal Representative must apply to the Probate Office of the High Court for a document known as a Grant of Representation. The Grant of Representation acts as an assurance to financial institutions that they can safely place the deceased person’s assets in the hands of the person name in the grant. The Grant of Representation is also known as a Grant of Probate (where there is a will) or Letters of Administration (where there is no will).
Special additional procedure relating to money in joint names?
In the absence of a letter of clearance from the Revenue Commissioners, banks, building societies and other financial institutions are prohibited by law from releasing monies (other than current accounts) lodged or deposited in the joint names of the deceased and another person or persons. This applies if, at the date of death, the total of all the amounts standing with the institution in the joint names of the deceased person and another or others exceeds €50,000. It does not apply, however, to monies which have only been held in the joint names of the deceased person and his or her surviving spouse or surviving civil partner. Applications for letters of clearance for production to financial institutions should be made to the deceased person’s Revenue.
Family Home
If the family home is held by both spouses/civil partners as joint tenants, the surviving spouse/civil partner automatically inherits the deceased spouse's/civil partner's interest. In the case of a cohabiting couple where the family home is held as joint tenants, the surviving partner automatically inherits the deceased partner's interest but may be liable for inheritance tax, unless the surviving partner qualifies for dwelling house exception. Where both die at the same time so that it is not possible to say who died first, property held as joint tenants is divided equally so as to form part of each of their estates. The surviving spouse/civil partner may require that the family home be given to him/her in satisfaction of the legal right share or the share on intestacy. If the family home is worth more than the legal right share then normally the spouse/civil partner would have to pay the difference into the deceased's estate. However, the surviving spouse/civil partner may apply to the court to have the dwelling house given to him/her either without paying the difference or by paying such sum as the court thinks reasonable. The court may make such an order if it thinks that hardship would otherwise be caused either to the surviving spouse/civil partner or to a dependent child.
The legal right share
If there is a will and the spouse/civil partner has never renounced their rights and is not "unworthy to succeed", then that spouse/civil partner has a right to what is called a "legal right share" of the deceased's estate.
- If there are no children, the spouse/civil partner is entitled to one-half of the estate;
- if there are children, the spouse/civil partner is entitled to one-third of the estate. The children are not necessarily entitled to the rest.
If you find that your spouse/civil partner has made a will that does not recognise your legal right share, you may still claim your right.
Cohabiting Couples have no legal rights to each other's estates but may be able to apply for redress when one of them dies. A church annulment has no legal status and and doe not change the status of a spouse. Cohabiting couples may, of course, make wills in favour of each other but such wills may not negate the legal right share of a spouse/civil partner.
A Personal Representative, is responsible for settling any outstanding tax matters for the period up to the date of death. If a person dies without having made a will or if the will is invalid for whatever reason, that person is said to have died "intestate". If there is a valid will, but part of it is invalid then that part is dealt with as if there was an intestacy. The rules for division of property on intestacy are as follows:
If the deceased is survived by;
- spouse/civil partner but no children - spouse/civil partner gets entire estate;
- spouse/civil partner and children - spouse/civil partner gets two-thirds, one-third is divided equally between children (if a child has already died his/her children take a share);
- parents, no spouse/civil partner or children - divided equally or entirely to one parent if only one survives;
- children, no spouse/civil partner - divided equally between children (as above)
- brothers and sisters only - shared equally, the children of a deceased brother or sister take the share;
- nieces and nephews only - divided equally between those surviving;
- other relatives - divided equally between nearest equal relationship;
- no relatives - the state.
Administrator: Person responsible for finalising a deceased’s affairs.
Beneficiary: Person entitled to benefit, i.e. gift or inheritance.
Codicil: An instrument executed by a testator for adding to, altering, explaining or confirming a will previously made by him/her.
Death benefit: Monies payable on the death of a deceased, e.g. superannuation, insurance policy, lump sum.
Disponer: Person who provided the gift or inheritance.
Estate: All assets, e.g. house, land, bank accounts, stocks & shares, livestock, jewellery, car etc. of a deceased person.
Executor: Person authorised by a will to finalise a deceased person’s affairs and distribute his/her estate. The executor has authority to act from the date of death. Any other personal representative has authority to act only when a Grant of Administration is obtained.
Grant of Probate: Grant of representation where there is a will.
Grant of Representation: In order to get legal confirmation of his or her appointment, the personal representative must apply to the Probate Office of the High Court for a document known as a Grant of Representation. The Grant of Representation acts as an assurance to financial institutions (e.g. banks, building societies, credit unions, etc.) that they can safely place the deceased’s assets in the hands of the person named as personal representative in the grant.
Inland Revenue Affidavit: An account of the deceased’s person’s assets, liabilities, beneficiaries etc.
Intestacy: Dying without leaving a will.
Legacy: Personal property passing under a will.
Letters of Administration: A grant of representation where no will exist.
Nomination: Nominated property is any property which the deceased placed in the name of another person their benefit on his/her death. Nominated property passes directly to that person in accordance the rules/regulations under which it was invested and it does not pass to the deceased’s personal representative to be distributed according to the will/intestacy.
Personal representative: The person responsible for finalising the deceased’s affairs.
Power of Attorney: A formal instrument by which one person empowers another to represent him/her to act on their.
Probate Office: An office within the Court Service under the jurisdiction of the High Court whose function it is to issue Grants of Representation
Survivorship: The right of a person to property by reason of having survived another person who had an interest in it, e.g. on the death of a joint tenant the survivor inherits the property.
Strangers in blood: Persons who have no tie between them by blood or valid marriage.
Testator: Person who makes a will.
Trustee: Person who holds property on trust for another.
Will: A declaration by which the person (testator) making it provides for the distribution of his/her property after his/her death.
Wills
A will is a legal declaration by which a person, names one or more persons to manage their estate and provides for the distribution of his property at death. There are two ways in which a person’s estate on death can be distributed;
1. Will (Testate)
2. Intestate (No will)
Will
It is important for you to make a will because if you do not, and die without a will, the law on intestacy decides what happens to your property. A will can ensure that proper arrangements are made for your dependants and that your property is distributed in the way you wish after you die. If you make a will, you are called a testator (male) or testatrix (female). If you die testate, then all your possessions will be distributed in the way you set out in your will. An executor can be a beneficiary under the will. In other words, the executor can also inherit under the will. When your estate is distributed, the legal rights of your spouse or civil partner and children, if any, will be fulfilled first after any debts are paid before any other gifts are considered.
The requirements of a valid will
- The will must be in writing
- You must be over 18 or have been or be married
- You must be of sound mind
- You must sign or mark the will or acknowledge the signature or mark in the presence of two witnesses.
- Your two witnesses must sign the will in your presence
- Your two witnesses cannot be people who will gain from your will and they must be present with you at the same time for their attestation to be valid. The witnesses' spouses/civil partners also cannot gain from your will.
- Your witnesses must see you sign the will but they do not have to see what is written in it.
- The signature or mark must be at the end of the will.
If you are unable to sign your will due to ill-health or illiteracy, it is acceptable for you to sign your will by means of a mark. If you are physically disabled to the extent that you are unable to sign or mark your will, it is possible for you to direct an agent or representative to sign your will for you. Your agent must sign the will in your presence and on your direction and your two witnesses must be present.
A will shall be revoked automatically in certain situations:
- If you marry or enter into a civil partnership, your will shall be revoked, unless your will was made in contemplation of that marriage or civil partnership.
- If you make another will, the first will you made shall be revoked.
- If you draw up a written document that is executed in accordance with the requirements for a will, your first will shall be revoked.
- If you burn, tear or destroy your will, it will no longer be considered valid. Or, if you have someone else destroy it, your will shall be revoked, provided this was done in your presence, with your consent, and with the intention of revoking your will
2. Intestate (No will)
If you die without a will you are said to have died 'intestate'. If you die intestate, this means your estate, is distributed in accordance with the law by an administrator. The rules for division of property on intestacy are as follows:
- spouse/civil partner but no children - spouse/civil partner gets entire estate;
- spouse/civil partner and children - spouse/civil partner gets two-thirds, one-third is divided equally between children (if a child has already died his/her children take a share);
- parents, no spouse/civil partner or children - divided equally or entirely to one parent if only one survives;
- children, no spouse/civil partner - divided equally between children (as above);
- brothers and sisters only - shared equally, the children of a deceased brother or sister take the share;
- nieces and nephews only - divided equally between those surviving;
- other relatives - divided equally between nearest equal relationship;
- no relatives - the state.