Dealing with the deceased's estate
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/civil partners 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/civil partner is aware of the right to a legal right share and distributes the estate in accordance with the will and the law.
The Law Society of Ireland has published a useful guide (pdf) on the administration of estates.
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 they take 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. They 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, for example, 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:
- Spouse or civil partner
- 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.
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:
- Get the form for personal applicants (Form PA2) from the Probate Office or one of the 14 local Probate Offices and fill it out. See guidance notes PA3.
- You also need Inland Revenue Affidavit (Form CA24).
- 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.
- 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.)
- 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
- 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.
- In due course you will be given an appointment for interview. (More than one appointment may be necessary.)
- Attend the interview in person and bring the following
- 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.
- Swear the Executor's oath. This is an oath swearing that they believe that the will in question is the last will of the deceased, that they are the person appointed as executor and that they will administer the will in accordance with the law. An administrator swears a similar oath.
- 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 letters 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 or 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.
You can find more information on personal applications on the Courts Servce website.
Duties of executor or administrator
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 are properly insured.
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
- 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 (or 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 assistance 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 in the Department's document on estate cases.
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.
Beneficiaries living abroad
Someone who is a beneficiary under an Irish will has to supply a Personal Public Service (PPS) number before a grant of probate can issue. The Department of Social Protection's Client Identity Services (CIS) provide a Registration Service for non-resident applicants who cannot attend at a designated PPS Registration Centre and who need a PPS Number for a transaction with a specified body. Client Identity Services can be contacted using the CIS secure online request form or by phone at Lo-call 1890 927 999 or (071) 967 2616.
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 (their 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
Contact the Probate Office to obtain the personal application probate form. This form is for use by personal applicants only. It is not for use by those applying through a solicitor.
This application form is also available from your District Probate Registry. Staff in the Registry will be able to provide assistance.
The application, along with the required documentation, should be returned to the Registry in the area where the deceased lived at the date of death.
Obtaining a copy of a will
Once a grant of probate (or letters of administration) has been issued, anybody can apply for copies of the grant and the will using Form PAS1 (.doc). The grant sets out the name and address of the executor or administrator of the estate and the name of the solicitor acting on their behalf (if any). It also sets out the gross value and the net value of the estate.
Detailed information about the estate is not normally available to the general public, however, certain people may be able to inspect the Inland Revenue Affidavit. They include:
- A beneficiary who is named in the will
- Someone who is entitled to a share of the estate
- A child who is entitled to bring proceedings against the estate under Section 117 of the Succession Act 1965
Information on obtaining a copy of a will is available on the Courts Service website as well as in the information notes of Form PAS1.
Where to apply
Questions about taxation and the deceased person's estate should be addressed to:
Questions about probate issues should be addressed to your district Probate Office or: