In this two-part article, Niamh Mc Dermott will detail in brief what is involved in an administration of a deceased’s estate.
Nothing can prepare you for the loss of a loved one. At this difficult time a lot of important decisions have to be made with regard to the deceased property, both real and personal, bank accounts, funeral expenses, and personal belongings. It is important to establish whether the deceased made a will or not. It is advisable to get help and assistance from a solicitor at this time on what to do once a loved one dies in terms of how to manage their estate and legal affairs.
Firstly you need to establish whether the deceased had an estate to be administered, what did the deceased own at the date of their death. Some assets may pass by survivorship on the death of a deceased and therefore would not form part of the estate. Once the estate of the deceased is ascertained, after you pay all funeral expenses ,debts, liabilities and taxes, the estate is to be divided among the beneficiaries in accordance with the deceased’s will or, if no will, the deceased is deemed to have died intestate and the estate is divided among the next of kin in accordance with the rules as set out under the Succession Act.
Probate is the legal term for the process of proving a will. The executor is the person named in the will who has the job of carrying out the terms of the will. The executor must deal with the person’s assets in the manner laid out in the will. Taking out a grant of probate is the process of establishing the validity of a will to the satisfaction of the Probate Office, which is the office charged with the task of issuing all grants of probate and administration. The effect of the grant of probate is to confirm the appointment of the executors. Even prior to the grant, the executors have full powers from the date of death.
Where a deceased dies without having made a valid will they are deemed to have died intestate and the next of kin is entitled to extract a grant of administration intestate from the probate office. The effect of the grant of administration is to effect the appointment of the administrators as they have no power to act prior to the grant. An administrator is also appointed in an estate where the executor is not named in the will, dies before the deceased or is unwilling or unable to act. The personal representative can be either an executor or administrator. The extraction of the appropriate grant is just one element of the administration. An administration can comprise many areas of law such as conveyancing litigation trusts and taxation. When commencing an administration, you also have to consider the tax implications. It is important that all beneficiaries are aware of any tax liability that they may have as a result of the inheritance and the relevant time limit to discharge any tax due.
Is it always necessary to take out Probate?
As a general rule, if the bank account or accounts in relation to a deceased person, contain less than €25,000, and there is no real estate, such as land or houses, the bank will release the monies to the next-of-kin on condition that an indemnity is provided. In that case, no grant of probate or administration is required. Banks differ on the amount that they will release without production of a grant. In certain cases where the deceased’s property was held jointly, a grant may not be necessary, as the asset may automatically pass to the surviving joint tenant. However, in some joint ownerships, the property will not pass automatically to the surviving joint tenant and a grant would be necessary, it all depends on the type of account and on the reasons for which the account was opened.
Where a grant is necessary and where there is a will, all the executors named in the will and living at the date of death of the deceased are entitled to prove the will and extract the grant of probate. If an executor named in the will does not want to take on the role they can renounce their role, but once they intermeddle in the estate, they cannot afterwards renounce without leave of the court.
Where there is no will, the next of kin nominates themselves to deal with the estate. The solicitor can advise you on who is entitled to take out the grant, they are called administrators. If a person dies leaving personal and/ real property in their sole name it is necessary to apply for a grant so that the property/ land can be sold or transferred into the name of another person.
Once it is established that it is necessary to take out a Grant of Representation the executor/ administrator will need to obtain the following documents/ information:
- Death certificate of deceased.
- Ascertain the whereabouts of the title deeds to any real property held by the deceased. (The solicitor can investigate the deeds to make sure all is in order). An auctioneer’s valuation of the property will have to be obtained at the date of death.
- Identify all beneficiaries.
- The addresses of all beneficiaries and their relationship to the deceased.
- Obtain the PPS numbers for all beneficiaries. If there is a foreign beneficiary they will have to apply for an Irish PPS number. The Department of Social Protection ‘client identity service’ provides a registration service for non-resident applicants.
- Ascertain whether the deceased held any bank accounts, insurance policies, stock or shares, prize bonds, an post accounts, any nominated accounts with the credit union, where are the pass books and original certificates. The solicitor will be able to contact the financial institutions and obtain date of death balances.
- If the deceased left property, to ascertain if it is insured.
- Identify the territorial area to which the Irish grant would apply and also the necessity if any to extract a foreign grant.
- Ascertain the liabilities of the deceased at the date of death, obtain funeral invoices, wake expenses, are there debts due and owing, are there any outstanding mortgages?
- Contact the Department of Social Protection to inform them the deceased has died If the deceased was in receipt of social assistance payment. This is to allow the Minister to reclaim any over-payment of pension that may have been made. The Department has 3 months to decide whether or not an overpayment was made. If the personal representative fails to do that they may be personally liable to repay the overpaid amounts.
- Ascertain whether or not the deceased was in receipt of The Fair Deal Scheme under the Nursing Home Support Scheme Act.
Carter Anhold & Co. can assist and advise on all aspects of the administration. Should you have any queries, or require any further information, please do not hesitate to contact us on 071 916 2211 or firstname.lastname@example.org