Tipp FM Legal Slot – 17th June 2014 – Probate Why Use a Solicitor?
On Tipp FM, Orlagh Wafer, Solicitor, spoke to Seamus on “Tipp Today” about Probate and why you should use a Solicitor.
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WHAT DOES THE TERM PROBATE MEAN?
Probate is the term used to describe the legal process that you must go through to allow someone to look after the affairs of a deceased person.
To deal with the assets it is necessary to apply to the High Court for authority to deal with the assets.
The Grant is necessary because when someone dies their assets are frozen. For example banks, credit unions etc. will freeze the deceased’s assets and generally only upon production of a Grant will they release funds.
This can be very distressing for the family and needs to be addressed as soon as possible.
DO YOU HAVE TO TAKE OUT PROBATE?
No, if there is no property in the estate and the assets are not significant generally a bank will release funds without production of the Grant. For example, if the estate is not larger than €7,000 a bank would not insist on production of a Grant. The Bank would release the monies to the next of kin if they provided them with an Indemnity.
Financial Institutions however, differ on the amount they will release without a Grant.
People can also nominate a person who will be entitled to take over their account. This usually applies to credit union accounts, post office accounts or assurance policies.
Another situation where you might not need a Grant is if properly is held jointly as joint tenants. If a property is owned with the owners as joint tenants, the will of the Testator will have no bearing on what happens to the property, ownership will automatically pass to the surviving owner.
So, it is always worthwhile checking with us to see if a Grant is necessary.
WHO IS RESPONSIBLE FOR TAKING OUT THIS GRANT?
If a person dies leaving a will the Executor is responsible.
If there is no will the law determines who is entitled to take out the Grant.
The legislation that governs this area is the Succession Act of 1965. The Act sets out the priority in which people can extract a Grant of Letters of Administration.
DO YOU HAVE TO HAVE A SOLICITOR DEAL WITH THE APPLICATION FOR A GRANT?
It is helpful that you seek the advice of a Solicitor to guide you through the process.
This will give you peace of mind that the application is being handled correctly and that any legal or tax issues arising from the administration of the deceased’s estate will be dealt with it. .
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 administrating the estate.
WHAT PROBLEMS CAN ARISE THAT PEOPLE SHOULD BE AWARE OF?
All the paperwork for the probate application must be completed in the exact format required by the Probate Office and all information required must be provided.
Incomplete applications or applications which do not comply with the court rules will be rejected which will result in delay and extra cost and frustration.
The Executor will have to make a return of all assets and liabilities on behalf of the deceased to the Revenue by completing an Inland Revenue Affidavit.
This is a very complex and detailed document and even the slightest error will result in it being rejected.
Once the paperwork is completed however and the Grant issues the job does not end there. The Executor or Administrator must then distribute the estate to the beneficiaries in accordance with the Will or the law if there is no will.
Invariably, even what can appear as the most straightforward of administrations can have its pitfalls.
Take an example, Mr Browne acted as administrator for his brother who had passed away. He decided to administer the estate himself. There was no Will. He had two other siblings one of whom passed away before his brother. He did not realise that the children of his pre-deceased sibling were entitled to a share in their parent’s share of the estate until after he had distributed the assets and the children had taken a claim. This is just one example of the complexity of the legal rules surrounding the administration of assets.
ARE THERE CIRCUMSTANCES WHERE YOU MUST INSTRUCT A SOLICITOR?
The Probate Office will insist that the application for a Grant would be made by via a Solicitor.
As an example, if the person entitled to take out the Grant is a minor, a ward of court or of unsound mind.
Other circumstances include where there is a question over the validity of the will or the original will has been lost.
In some circumstances, individuals also will not be permitted to take out a Grant where the beneficiaries or the deceased person was resident outside of Ireland.
The Probate Office can also refuse to permit an individual to take out the Grant if an Officer deems it appropriate.
