- Wills
- Intestacy
- Taking out probate
- Duties of executors and administrators
- Family home
- Dealing with the deceased's debts
- Social welfare recipients
Nearly everyone has some money and/or property which has to be dealt with after death. If there are substantial amounts involved, it is advisable to get professional advice from a solicitor and/or instruct a solicitor to deal with everything. It is possible to do this personally if the deceased person's affairs are not complex and there are no major disputes about what is to happen to the estate.
Wills
The first thing is to establish if there is a will and to find the original if possible.
If there is a will, then the executor needs to take out probate (this is the process by which the will is put into effect). If there is no will, or, if no executor has been appointed or the appointed person cannot act, an administrator may be appointed and the court issues a document known as Letters of Administration.
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. If matters are fairly straightforward the executor/administrator may decide to make a personal application for probate.
Right to inherit under a will
If there is no will, the estate is divided on the basis outlined overleaf. If there is a will, then the assets are distributed in accordance with the terms of the will subject to the rights of the spouse and, in some cases, the children.
The legal right share
If there is a will and the spouse has never renounced his/her rights, for example, in separation proceedings, and is not unworthy to succeed (for example, if the spouse had deserted the deceased for at least two years before the death), then that spouse has a right to what is called a legal right share of the deceased's estate.
If there are no children, the spouse is entitled to one-half of the estate; if there are children the spouse is entitled to one-third of the estate. The children are not necessarily entitled to the rest.
If you find that your spouse has made a will which does not recognise your legal right share you may still claim your right. The executor or administrator is obliged to grant you your share.
Your spouse is the person to whom you are legally married. Non-married partners have no automatic legal rights to each other's estates. Partners may, of course, make wills in favour of each other but such wills may not negate the legal right share of a spouse.
Renouncing or losing your rights under a will
There are various circumstances in which a spouse renounces his/her rights under the Succession Act. Sometimes this might be done prior to marriage - this is not unusual in second marriages; or the spouse 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, but separation does not always involve renunciation of succession rights. A divorce decree does mean 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.
Rights of children under a will
Unlike a spouse, children have no absolute right to inherit their parents' estate if the parent has made a will. However, children who consider that they have not been adequately provided for may make an application to court. The child need not be a minor or be dependent on the parent 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 and adopted children 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 the estate on intestacy are as follows:
If the deceased is survived by:
- A spouse but no children or grandchildren - the spouse gets the entire estate
- A spouse and children - the spouse gets two-thirds, one-third is divided equally between the children (if a child has already died, his/her children take a share)
- Children, no spouse - divided equally between the children (as above)
- Parents, no spouse or children - divided equally or given entirely to one parent if only one survives
- Brothers and sisters only - shared equally, the children of a deceased brother or sister take their parent's share
- Nieces and nephews only - divided equally between those surviving
- Other relatives - divided equally between the nearest equal relationship
- No relatives - the State.
Taking out probate
Taking out probate basically means having the Probate Office certify that the will is valid and that all legal, financial and tax matters are in order so that the executor or administrator can distribute 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.
Assets cannot be sold or distributed until the will is proven.
Appointing an administrator
If there is no 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 is decided by the Probate Registrar. Usually, an administrator is required to give an administration bond to the Probate Office - this is a surety or guarantee that you will carry out your duties properly. You pay a small premium to an insurance company for this bond, based on the value of the estate.
Objections or caveats
Any person may oppose a grant of probate or of letters of administration. You can do this by lodging a caveat (objection) in the appropriate district probate registry or at the probate office.
Personal applications for a grant of probate
You may make a personal application for a grant of probate to the Probate Office or to one of the fourteen District Probate Registry offices . You should go to the office in the area where the deceased lived at the date of death. Appendix 1 gives details of the steps involved in making a personal application.
Duties of executors/administrators
Once probate or a Grant of Administration has been granted, the jobs of the executor and the administrator are broadly similar. They are obliged to distribute the assets as soon as possible after the death, generally within a year. Beneficiaries may sue if the estate is not distributed within a year, although this may not be possible if there are legal issues to be decided.
After the Grant of Probate or Grant of Administration has been obtained the personal representative should execute a Deed of Assent to transfer any property held in the name of the deceased into the name of the beneficiary. The services of a solicitor are usually required for this.
Even though the Capital Acquisitions Tax (CAT) is due from the beneficiaries, the executor/administrator may be held legally liable if they (the beneficiaries) don't pay it. Therefore, if you are the executor/administrator, it is very much in your interest to deduct and pay CAT before passing on the bequest. You are also responsible for paying any income or capital gains tax on income from the estate during the administration period.
The family home
Frequently, the family home (and, indeed, other property) is jointly owned by a husband and wife. If this is the case, the surviving spouse automatically becomes the owner of the house and or property.
Property owned jointly in this way is said to be owned as joint tenants with the right of survivorship. This is generally the case when married couples own a house. It may also arise where a cohabiting couple own a house and they want to ensure that the survivor becomes the owner.
It is also possible to own property as tenants in common. This means that two or more people own property but do not intend that each person's share would become the property of the survivor(s). Such shares may be willed to other people or be inherited on intestacy.
If the surviving spouse does not own the family home, he/she may require that it 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 would have to pay the difference into the deceased's estate. However, the surviving spouse may apply to the court to have the 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 or to a dependent child.
Local authority tenancies
Any relative who was normally living with the tenant of a local authority rented dwelling is usually able to succeed to the tenancy on the tenant's death. The practice among local authorities varies on this; some insist on a minimum number of years in residence; others allow relatives to succeed only where the accommodation is considered to be suitable to the relative's needs.
Dealing with the deceased's debts
Any debts must be paid out of the estate before anything else. Where there is not enough money in the estate to pay all outstanding bills or debts, those concerning the funeral and administration of the estate take priority, followed by debts that have security (such as housing loans) and lastly unsecured debts (for example, personal loans). Some debts may be covered by loan protection insurance in the event of death (for example, credit union loans).
Social welfare recipients
If the deceased was receiving a means-tested social welfare payment then you must inform the Department of Social and Family Affairs of the death before distributing the estate. This is to allow the Department to reclaim any overpayment of pension that may have been made. The Department has three months to decide whether or not an overpayment was made.
Estates Section
Department of Social and Family Affairs
Pensions Service Office
College Road
Sligo
Tel: (071) 916 9800 / (01) 704 3000
Fax: (071) 916 9926 / (01) 704 3417
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