Extracting a Grant of Probate
Written by, Roddy Tyrrell, publisher of Lawyer.ie, Dublin. Call him on 01 - 667 1746 or use the enquiry form.
1. Why take out a Grant Of Probate.
When someone dies their property immediately passes into the hands of the executor's. Then in order for their property to be divided according to their wishes, the executor of their estate must apply to the Probate office to take out a grant of Probate in order to administer their estate. The estate of the deceased cannot be administered until the grant of probate is received from the Probate office. The Probate Office is part of the High Court and its core function in the probate process is to give authority to the correct person at law to deal with a deceased person's estate.
The three most common types of Grant issued by the Probate Office are the following;
- Grant of Probate- Where a person dies leaving a valid will and appoints an Exector.
- Grant of Letters of Administration- Where a person dies without having made a valid will, they are deemed to died intestate. The Grant issues to the person or persons who were their nearest next of kin at the date of death. The Succession Act 1965, determines who is next of kin.
- Grant of Letters of Administration with Will Annexed- Where a person dies having made a valid will and a person other than the executor applies, the Grant issues to the persons entitled by law.
2. Find the Will.
In order to take out a Grant of Probate the first thing that must be done is locate the will of the deceased. Usually it will be with either in the deceased home, with another family member or in the solicitor's office. The will should be located as soon as possible after the deceased's death.
3. Ascertain Executors.
A will usually contains the appointment of an executor(s). Their duty is to administer the estate of the testator. The task can be quite arduous depending on the size and scope of the testator's estate.
If no executor is appointed or the executor has predeceased the testator, the estate will have to be administered by a person called an administrator. This person will be the residuary legatee and devisee (i.e. the person who inherits the remainder of the estate that is left after all the gifts under the will have been satisfied.)
4. Obtain a Death Certificate.
To obtain a grant of probate it is necessary to prove the person is dead. This may seem a little obvious but from the Probate office's point of view they do not want to give a grant of Probate of someone's estate that is not even dead.
5. Appoint a solicitor.
It is now up to the executor to decide whether or not he will use a solicitor to help him to administer the estate and prove the will or whether he will take it on himself. This will depend on a number of factors. Like the size of the estate, the experience the executor has in such matters etc. Obviously there will be an added cost if he/she were to use an executor but it must be remembered that a lot of time and trouble can be saved in using someone who does this kind of thing every day of the week.
6. Taking out a Grant without a Solicitor.
If the executor decides to prove the will himself then he must apply to the Personal Applications Section of the Probate Office for an appointment. The office is located at the Four Courts in Dublin. If you decide to take out a Grant of Probate you will have sole responsibility for the administration of the estate concerned together with completion of the necessary legal documents relating to same. Therefore, before deciding to apply to the Probate Office you must be confident that you have the ability to research and undertake the legal responsibilities associated with adminsitrating the estate.
There are certain circumstancs where it is not possible to apply in person to extract a Grant of Probate and, consequently a solicitor will have to be instructed;
- Where the person entitled to apply for a Grant of Representation is a Ward of the Court or a person of unsound mind
- Where the person entitled to apply is a minor (a person under the age of 18 years)
- Where there are issues concening the validity of a will
- Where there are issues among the next of kin regarding the estate
- Where the original will has been lost
- Where a beneficiary of in excess of €20,000 of an estate is non resident in this jurisdiction and the potential applicant for the Grant is also non resident
- Where the deceased dies without making a will (intestate) and was domiciled outside of the Republic of Ireland and leaving assets within this jurisdiction and no Grant of Representation has been extracted in the place of domicile (domicile is a legal term and used to describe the place in which the deceased had their permanent home.
- Where the deceased dies domiciled outside of the Republic of Ireland, leaving a will in a foreign language
- Where the deceased dies domiciled outside of the Republic of Ireland leaving a will which has not been proved in the law of domicile and a person other than the executor intends to apply for a Grant within this jurisdiction
The above circumstanceas are not exhaustive and there may be further circmstances which,in the opinion of the Probate Officer require the assistance of a solicitor. The Probate Officer's opinion is final
7. Ascertain assets and liabilities.
Now the executor must ascertain the entire assets and liabilities of the deceased. This means getting everything from the cost of their funeral and their last mobile phone bill to the money in their credit union account. This task can be quite arduous. It must be remembered that property held under joint accounts is not included in the deceased's estate. The principle of survivorship applies to such property. This principle arises where two or more people own something. On the death of one joint owner, his interest automatically passes to the survivors. This is most common in husband wife relationships. Once the death certificate is obtained the property passes to the survivor(s). The effect of this is that this property does not form part of the testator's assets for the purposes of the will. Such property is outside the will and is not considered when administering the estate.
8. Make a return to the Revenue Commissioners.
Once all the assets and liabilities of the estate have been ascertained a return to the Revenue Commissioners must be made. Under the Finance Act 1993 this must be accompanied by a Probate Tax Return, which is a sworn affidavit form that is available from the Revenue Commissioners. It is important that this form is completed with the utmost care and honesty as it is a sworn statement and it will be scrutinised by the Probate office.
9. Apply to the Probate Office.
The next step is to actually apply to the Probate Office for a Grant of Probate. This will include the submission of a number of forms along with the original will. All these will be examined thoroughly by the probate office. If everything is in order the Probate will issue a document called a Grant of Representation, which authorises the executor named theren to administer the deceased estate.
- The person dies leaving no assets. Should a legal issue arise, it may then become necessary to apply.
- Where a person dies leaving a house and or land in joint names, the house or land automatically passes to the surviving joint owner. A Grant would be necessary if the person holds a share in the property as a tenant in common in order to administer the deceased's share of the property.
- When a person dies leaving money in a financial institution in joint names a Grant may be necessary if any monies do not pass automatically to the surviving joint holder. This depends on the type of account and the purpose of its creation.
- It will be necessary to apply when a person dies leaving a house or land in his or her sole name.
- Where a person dies leaving money in a financial insitution in his/her role name, it may be necessary to apply for a grant. The executor or next of Kin should contact the relevant financial insitution where the funds are held.
- Where a person dies domiciled outside the Republic of Ireland leaving assets in this jurisdiction, an Irish Grant of Representation is necessary to deal with these assets even though a Grant has issued in another jurisdiction.
10. Administer the Estate.
Once the grant of probate has been received the executor is now ready to administer the estate.
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