Dealing with the deceased's estate

Information

This document describes the process of administering a deceased person's estate in Ireland.

Issues regarding the right of access to the deceased person's estate, the rights of spouses and family members and what happens if the deceased person has not made a will are all described in What happens the deceased's estate.

If there is a will and an executor has been appointed, then the executor deals with the estate. This means that they make sure that the spouse is aware of the right to a legal right share and distributes the estate in accordance with the will and the law.

If there is no will, or, if there is a will but there is no executor, an administrator is appointed - usually the next of kin or a solicitor.

Rules

In order to get authority to administer the estate a legal document called a Grant of Representation is required of which there are three types. If there is a will, then the executor needs to take out probate. If there is no will, or, if no executor has been appointed or the appointed person cannot act, an administrator may be appointed and he/she takes out a Letter of Administration (or a Letter of Administration with Will Annexed if there is a will).

The duties of the executor and administrator are broadly the same. If the estate is complex, it may be advisable to appoint a solicitor to do the job. He/she will be paid out of the estate and will usually charge around 3% of the value of the estate (or less on very large estates). If matters are fairly straightforward, the executor/administrator may decide to make a personal application.

Taking out probate

Taking out probate basically means having the Probate Office or the appropriate District Probate Registry certify that the will is valid and that all legal, financial and tax matters are in order so that the executor or administrator can be allowed to get on with the job of distributing the estate.

"Proving" the will is the process by which the Probate Office accepts that the will is valid and may be put into effect. The Office may carry out some enquiries, e.g., it may ask to see the witnesses to the will but this does not always happen.

Appointing an Administrator

If you don't make a will, an administrator must be appointed. An administrator is also appointed where an executor is not named in the will, dies before the testator or is unwilling or unable to act.

The next of kin may apply for a grant of administration. Priority is given in the following order:

• the spouse,
• child,
• parent,
• brother or sister,
• more distant relative.

If there is doubt about who is entitled to be the administrator, the issue will be decided by the Probate Registrar. Usually, an administrator is required to give an administration bond to the Probate Office - this is a sort of guarantee that you will carry out your duties properly.

Caveats

Any person may oppose a Grant of Probate or a Letter of Administration. If you have an objection, you may lodge a caveat (objection) in the appropriate District Probate Registry or at the Probate Office.

A personal application

To make a personal application you must attend in person. The Probate Office has discretion to refuse to allow a personal applicant to be attended by an adviser. It may also refuse to allow an applicant to personally continue an application if it had been initiated by a solicitor. Where an application is made in connection with a case that has already been before the courts, that application must be made by a solicitor unless a special direction is received from the Probate Office. The Probate Office will help an executor/administrator who is acting personally.

A personal applicant for probate or for administration of the estate must take the following steps:

1. Download the application form (see 'Where to apply below) or obtain the form for personal applicants from the Probate Office or one of the 14 local Probate Offices.
2. Fill out the form as best you can by entering details of bank, post office, building society accounts, property, assets, stocks, shares, debts, etc., of the deceased
3. Return the completed form to the Probate Office. You will then get an acknowledgement and be given an appointment for a preliminary interview (more than one appointment may be necessary)
4. Attend the interview in person and bring the following required items:

• a death certificate
• original will and codicil/s (if any)
• funeral bills/receipts
• statements up to the time of death of deposits in banks, post offices, credit unions, building societies, etc.
• details of other assets (for example, assurance policies, gratuities, superannuation schemes, stocks, shares, cash, prize bonds, etc.)
• details of any liabilities, debts (outstanding mortgages, loans, wages due to staff, etc. - You may have to put an advertisement in the papers asking creditors to send in their claims within a certain period.)
• details of any debts owing to the deceased's estate (wages, holiday pay, court case settlements, etc.
• details about property (estimated value) together with title deeds or land certificates.

If an administrator, rather than an executor, is applying for a grant, a surety (guarantor) must attend the interview also so that the administration bond can be completed. The surety must reside in Ireland and must be worth the gross value of the estate.

1. Sign the documents and swear the Executor's oath. This is an oath swearing that he/she believes that the will in question is the last will of the deceased, that he/she is the person appointed as executor and that he/she will administer the will in accordance with the law. An administrator swears a similar oath.
2. Take the completed Revenue Affidavit to the Revenue Commissioners for clearance for Capital Acquisitions Tax purposes. (Under changes from 14 June 2010 the Affidavit is sworn in duplicate and you give it to the Probate Office. One copy as well as any other relevant information will be sent by the Probate Office to the Revenue Commissioners after Probate is granted. )
3. Pay the fee for probate
4. Get permission from Probate Office to administer the estate.

If the Registrar of the Probate Office is satisfied that the will is valid and there are no caveats (objections) entered then probate will be granted (or Letter of Administration).

If there are problems (for example, if the original will cannot be found or there is doubt about signatures) then the Registrar may require sworn statements from witnesses. If there are no problems, the Grant of Probate or Administration is issued on the oath of the executor/administrator.

The Probate Office or the District Probate Office will make a standard form of grant unless there is a contentious aspect to the application. Where a contentious issue arises, the matter must be decided by the High Court judge in charge of probate matters although the High Court can direct that the matter be resolved by the Circuit Court in certain circumstances.

Duties of Executor/Administrators

Generally, you are obliged to distribute the assets as soon as possible after the death (within a year if possible - you may be sued by the beneficiaries if you do not distribute the estate within a year). This may not be possible if there are legal issues to be decided).

You are under a duty to preserve the assets of the deceased until they are distributed and to protect the assets from devaluation. For example, you should make sure that all assets required to be insured are insured for their market value.

You have power to:

• deal with the estate (for example, to sell it to pay debts or distribute amongst beneficiaries)
• represent the deceased in legal actions and to settle legal actions against the deceased's estate.

You must:

• gather together and protect all the deceased's assets (money, shares, property, etc.) and find out their combined value
• call in any outstanding funds due (money owing to the deceased)
• pay any debts or taxes owed
• pay the funeral expenses
• make sure that the spouse and children know about their legal right share
• make sure the entitled beneficiaries or next of kin get what they are entitled to, and thatownership of property is passed on correctly.

Social welfare recipients

If the deceased was receiving a social welfare payment, you must inform the Minister for Social Protection of the death before distributing the estate. This is to allow the Minister to reclaim any overpayment of pension that may have been made. The Department has 3 months to decide whether or not an overpayment was made. If you fail to do this, you may be made personally liable to repay the overpaid amounts. You can read more about social welfare requirements on the Department's document on Estate Cases.

Transferring land

You transfer land by way of an "Assent" to the beneficiary under the will or under the Succession Act. An assent must be in writing. If you are the beneficiary, it is not absolutely necessary for you to vest the property in yourself by way of an assent (as technically the property already vests in you). However, it is recommended practice that you do so in order to facilitate any future selling of that land.

It is the executor/administrator's responsibility to pay the Probate Tax from the estate (if the deceased died before 6 December 2000). Even though the Capital Acquisitions Tax (CAT) is due from the beneficiaries, the executor/administrator will be held legally liable if they (the beneficiaries) don't pay it. Therefore, if you are the executor/administrator, it is very much in your interest to deduct and pay CAT before passing on the bequest. You are also responsible for paying any income or capital gains tax on income from the estate during the administration period. The Revenue Commissioners can give you advice on this complex area and there is a comprehensive and well-laid-out explanatory booklet available.

If the deceased dies in debt

If the deceased dies insolvent or there isn't enough money to meet the bequests made, payments from the estate are prioritised in the following order:

• funeral, testamentary and administration expenses
• creditors who have security against the property of the deceased in the form of a mortgage, charge or lien (these are different ways of securing loans)
• rates and taxes due at the testator's death, wages and salary for work done for the deceased within four months of death and sums payable by the estate in respect of contributions payable by the deceased in the twelve months prior to death under social welfare legislation (his/her own PRSI contributions as well as PRSI contributions for employees)
• all other creditors.

Where the deceased dies in debt, creditors can only bring a claim against the estate of the deceased. Even if there isn't enough money in the estate to meet all the debts, the relatives of the deceased are not personally responsible or liable for the deceased's debts (unless, of course they had guaranteed them).

How to apply

Download the personal application probate form here. This form is for use by personal applicants only. It is not for use by those applying through a solicitor.

Complete the form by either filling it in on screen and then printing off, or printing off the form and completing it manually.

This application form is also available from your District Probate Registry. Staff in the Registry will be happy to provide any assistance. The application should be returned to the Registry in the area where the deceased lived at the date of death.

Where To Apply

Questions about taxation and the deceased persons estate should be addressed to:


Questions about probate issues should be addressed to your district Probate Office or: