Dealing with the deceased's estate

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. Otain the form for personal applicants (Form PA2) from the Probate Office or one of the 14 local Probate Offices and fill it out.
2. You also need Inland Revenue Affidavit (Form CA24).
3. Fill out 2 copies of the Revenue Affidavit form as best you can by entering details of the deceased's estate such as bank, post office, building society accounts, property, assets, stocks, shares, debts. See guidance leaflet CA25.
4. Sign and swear both copies of the Revenue Affidavit before a practising solicitor or a commissioner for oaths. (One copy of the affadavit, as well as any other relevant information, will be sent by the Probate Office to the Revenue Commissioners after Probate is granted.)
5. Return the personal application form to the Probate Office along with:
   - the 2 copies of the Revenue Affadavit
   - the death certificate
   - a photocopy of the will and codicil/s (if any)
   - any other necessary document, for example, official copy of divorce decree
6. The Probate Office will contact you if there are other requirements or issues. If the Probate Office is satisfied it can process the application you will get an acknowledgement and an estimated waiting time for an appointment.
7. In due course you will be given an appointment for interview. (More than one appointment may be necessary.)
8. Attend the interview in person and bring the following required items:
   - proof of identity, such as your passport
   - original will and codicil/s (if any), as well as 3 copies of each
   - 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 or debts such as outstanding mortgages, loans, wages due to staff. (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 (valuation required) together with title deeds or copy of land registry folio.
   If an administrator, rather than an executor, is applying for a grant, an administration bond may have to be provided. The surety (guarantor) for the administration bond must be worth the gross value of the estate.
9. 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.
10. Pay the fee for probate.

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 such as money, shares and property 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/civil partner and children know about their legal right share
• make sure the entitled beneficiaries or next of kin get what they are entitled to, and that ownership 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.

Capital Acquisition Tax

The executor/administrator is not required to deduct and pay the Capital Acquisitions Tax (CAT) due from the beneficiaries before passing on the bequest. When probate has been granted, the Probate Office sends a copy of the Revenue Affadavit to the Revenue Commissioners. The Revenue Commissioners will then issue a Form IT38 to each beneficiary who it understands may have a requirement to pay and file a CAT return. The obligation to pay and file a return rests with the beneficiary. See Revenue's Guide to completing the IT38 return.

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:

1. Funeral, testamentary and administration expenses
2. 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)
3. 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)
4. 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).