Everything you need to know Probate & Administration of Estates

Probate or Administration is the legal process for handling the assets and liabilities of a deceased person. This process authorises a named person or persons to take control of a deceased person’s estate.

They receive a document, usually called a Grant of Probate or Letters of Administration, which is their legal authorisation.

Generally, there are two scenarios: a person leaves a Will, or there is no Will or an ineffective Will. The authorised person gets instructions from the Will if there is a Will. If there is no Will, the authorised person gets instructions from the Law – the Succession Act 1965.

Is that it?

Usually, a person can make whatever Will they like. Two notable exceptions are in the case of spouses or civil partners and children. Unless you have the agreement of a spouse or civil partner, you must leave them a minimum benefit in your Will.

You can exclude your children from your Will, but they can make a Court application to challenge this and seek benefits.

The Process

The process usually starts with the nominated person (Executor or Administrator) seeing if there is a Will. As an Executor or Administrator, they then find and take control of assets and liabilities.

They then apply to a state-appointed office, called the Probate office, for the legal authorisation to distribute the deceased’s assets – the Grant of Probate/Grant of Administration. You must also submit all the estate details for clearance to Revenue.

Once a Grant Authorisation is issued, you can carry out the instructions under the Will. If there is no Will, you must follow the specific guidelines set by law to finalise everything. Once all assets are gathered, debts and liabilities will be discharged, and the beneficiaries’ inheritance will be paid.

Once this has been completed, accounts must be prepared, setting out the details of the Administration of the deceased’s assets.

Is it easy?

The filing of the papers is usually relatively straightforward unless you are dealing with a complex estate. It is the legal requirements that often cause problems. The real danger is that sometimes it is easier to identify problems with all the facts and a good knowledge of the Law.

All the paperwork for the probate application must be completed in the exact format required by the Probate Office. Incomplete applications or applications that do not comply with the rules will be rejected, resulting in delay, extra cost and frustration.

The Probate Office is appointed to ensure the paperwork is in order. The Court is the appointed agency to deal with any disputes.

Do you always have to get the authorisation?

A bank may release funds without the Probate Authorisation if the assets are insignificant. They may look for an indemnity to be signed and tax clearance. People can also nominate a person entitled to take the proceeds of their account. This usually happens with credit union accounts, post office accounts, or assurance policies.

Currently, proposals are being made to try to reduce the number of estates that require an application for Probate or administration and streamline the process.

What happens if assets are not in the sole name of the deceased?

Assets can often be owned by someone else jointly in two ways:

1. On one basis, joint tenancy, the survivor takes full ownership.
2. On the other hand, each person has their share of tenancy in common.

It is essential to find out which one applies.

Who is responsible for taking out this authorisation?

If a person dies leaving a Will, the Executor is responsible. The legal rules typically designate the next of kin if there is no will.

How long does the process take?

How long is a piece of string?

It depends on the size and complexity of the estate. The time involved depends on how long it takes to gather all the information to present the application to the Probate Office.

The Executor’s job can be easier if the person making a Will leaves a summary of their assets with clear instructions.

If there is a dispute about the Will, this can prolong the time it takes to distribute an estate.

Are the steps more or less similar if someone dies without a Will?

They are more or less the same, except for a further requirement for aBond-like insurance policy. Also, it may take time to decide who should administer the estate.

Afterthought

In most cases, you will find that the Solicitor who acted for the Deceased person holds the Will, and the Executors will know it.

Anyone who makes a Will should inform the Executor or a family member of the location where the original Will is stored. It is essential for an Executor to control all the assets of the deceased’s estate and protect those assets for the ultimate beneficiaries.

You will generally find that the Executor will contact the Solicitor to inform them that the Testator has passed away. The Solicitor will arrange for the Executors to call their office, at which point the Will will be read.

For further advice or if you wish to discuss any other legal area please contact reception@lynchsolicitors.ie or telephone 052-6124344.
The material contained in this blog is provided for general information purposes only and does not amount to legal or other
professional advice. While every care has been taken in the preparation of the information, we advise you to seek specific advice from us about any legal decision or course of action.

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