Probate is the legal term for a procedure that gives a person, chosen by you, authority to carry out your wishes as set out in your Will. When someone dies their assets are frozen; Banks will freeze monies in accounts and only unfreeze funds when Probate is completed. To deal with the assets it is necessary to apply to the High Court for authority and after going through various legal steps, the High Court gives you a document called a Grant of Probate.
Where there is not a lot of money in an account, a bank may release funds without looking for a Grant; it might also ask you for personal guarantee. While each case will be considered on its own merits by the bank, as a general rule if there is less than €25,000 in the bank it will be unfrozen.
A Grant may not be necessary if property was owned in joint names as ownership will automatically pass to the surviving owner, regardless of what is specified in the Will. A very common example of this is the family home – in most cases nowadays when a couple buy “the family home” it is in joint names so ownership will pass to the survivor on the death of the husband, wife or partner.
If a person dies leaving a Will they will nominate someone to look after their affairs , call an Executor who will take out the Grant of Probate. In most cases the Will is held by the Solicitor that acted for the deceased person and the Executor will have knowledge of it. It is advisable for anyone who makes a Will to let either the Executor or a family member know where the original Will is kept. It is usually the Executor who makes contact with the Solicitor when the Testator (person who died with a Will) passes away. The Solicitor will then make arrangements for the Executors to call to his/her office for the reading of the Will.
If there is no Will then Probate is called a Grant of Letters of Administration. The Succession Act of 1965 sets out, in priority, the people who can take out a Grant of Letters of Administration. One example is if a person dies, and is survived by his wife and children; the surviving spouse is entitled to take out the grant.
After meeting the Executors, the Solicitors will be on a fact finding mission to find out the assets and the liabilities of the deceased. It is very helpful if the deceased has left a summary of assets, bank accounts and insurance policies with the Will as it can be a good starting point for the Executors in their enquiries.
If the person owned a lot of property, perhaps owned property abroad and also had multiple bank accounts and life insurance policies it can take some time to gather all of this information. The details of the assets and liabilities will be disclosed to the Revenue Commissioners. Once all enquiries have been completed an Inland Revenue Affidavit is prepared which sets out comprehensively all the details . At the same time the Executor will complete the application forms required by the Probate Office. Once the application is submitted the papers will be considered by the Probate Office and, if everything is in order, the Grant of Probate will issue.
Once the Grant issues the Executor is entitled to gather all of the property of the Testator and distribute it in line with the directions in the Will. So, for example, money in the Testators bank account can be withdrawn, shares can be sold and title to property (e.g. houses) can be transferred to the beneficiaries or sold depending on the instructions in the Will.
