What happens the deceased's estate

Rules

A Testator is a person who has made a will. If you die without making a will, you are said to die intestate. If that happens, your money and property is distributed in accordance with the rules set out in the Succession Act, 1965.

There are some restrictions on what you can do in a will. In general, you may not completely disinherit a spouse/civil partner and, if you do, your spouse/civil partner may claim his/her legal right share. You are not obliged to leave any assets to your children but if you do not, they may be able to make a claim on the basis that you have not fulfilled your obligations towards them. Apart from that, you may dispose of your estate (estate is the term used to describe all of your assets, your money, property, etc.) in whatever way you like.

The personal representative is either:

• an executor or executors - this is a person or people appointed by the deceased person in his/her will.
• an administrator(s) - this is usually the next of kin or a lawyer. An administrator is appointed where there is no will, or where no executor is nominated in the will or where the executor has predeceased the testator or is unwilling or unable to act as executor.

It is the personal representative's responsibility to distribute the estate in accordance with the will of the deceased and/or the law.

Money in the bank

If the money in the bank or the insurance policy is in the deceased's name only then family members usually cannot get access until probate is taken out. If the amount of money in the bank is small, the bank may release it provided the personal representatives or the next of kin sign an indemnity form - in effect, this is a guarantee that the bank will not be at a loss if there are other claims on the money.

If the bank account is in the joint names of the deceased and the deceased's spouse/civil partner, the money can usually be transferred into the survivor's name. You will need the death certificate to do this. If there is an account with more than €50,000, you will also need a letter of clearance from the Revenue Commissioners allowing the money to be transferred into the surviving spouse's name. Spouses are not liable for Capital Acquisitions Tax on inheritances from each other. (When the required legislation is passed this will also apply to civil partners.) You should apply to the Capital Taxes Office of the Revenue Commissioners for a letter of clearance.

If the bank account is in the joint names of the deceased and someone else, and the bank was given instructions when the account was opened that the other person was to receive the money on the death of the deceased, the money can be transferred into the survivor's name. The death certificate will be required to do this. If there is an account with more than €50,000, a letter of clearance from the Revenue Commissioners will be required. allowing the money to be transferred into the surviving spouse's name pending investigations about liability to Capital Acquisitions Tax (CAT). Where the bank has no instructions, it will be necessary to establish what was intended to happen to the money on the death of the deceased.

Credit union accounts

If the deceased had a credit union account and had completed a valid Nomination Form, when opening the account, nominating someone as next of kin, the proceeds of the account up to a maximum of €23,000 go to the person or persons nominated on the form. They do not form part of the deceased's estate.

The balance of the account forms part of the deceased's estate and is distributed in accordance with succession law.

Occupational and personal pensions

The rules governing occupational and personal pensions vary with the different pension arrangements. If the deceased was a member of a pension scheme, you should contact the scheme administrators to find out if there is a pension for the spouse/civil partner and/or children. Self-employed people may have pension arrangements that involve some of the investments becoming part of the deceased's estate.

Divorced people and those whose civil partnership has been dissolved may have access to some part of the pension scheme depending on whether or not a pension adjustment order was made at the time of the divorce/dissolution.

The legal right share

If there is a will and the spouse/civil partner has never renounced his/her 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. You do not have to go to court; the executor or administrator is obliged to grant you your share.

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 so does not change the status of a spouse. If a partner in such an annulled marriage subsequently "remarries" or enters into a civil partnership, this is not a legal marriage or civil partnership, and the parties have no rights vis a vis each other. 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.

The 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 tax exemption. 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.

Renouncing or losing your rights under a will

There are various circumstances in which a spouse/civil partner renounces his/her rights under the Succession Act. Sometimes this might be done prior to marriage/civil partnership or the spouse/civil partner may waive the right in favour of a child or children. If the couple are separated, it is usual to renounce rights to each other's estates in a separation agreement. A separation does not always involve renunciation of succession rights. A divorce/dissolution decree means the end of succession rights; the court, of course, has the power to take the loss of these rights into account when deciding on the financial settlement between the spouses/civil partners.

Being "unworthy to succeed" is relatively rare and would arise, for example, where the surviving spouse/civil partner murdered the deceased or committed certain other serious crimes against the deceased. It may also arise if you had deserted your spouse/civil partner for at least two years before the death.

Rights of children under a will

Unlike a spouse/civil partner, children have no absolute right to inherit their parent's estate if the parent has made a will. However, if a child considers that he/she has not been adequately provided for, he/she may make an application to court. The child need not be a minor or be dependent in order to use this procedure. The court has to decide if the parent has "failed in his moral duty to make proper provision for the child in accordance with his means". Each case is decided on its merits and the court looks at the situation from the point of view of a "prudent and just" parent. Anyone considering challenging a will on these grounds should get legal opinion before applying to the court.

Children born within or outside marriage have the same rights.

Intestacy

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