What is Probate and How Does it Work in Ireland?
Probate is a legal process which gives a person (or a number of people) the authority to deal with a deceased person’s estate. In Ireland, Probate works by making an application to the Probate Office or the District Probate Registry. In the case of a complex Probate case, you should seek the services of an experienced Probate solicitor.
What is Probate?
Probate is a legal process that is sometimes required after a person dies. It involves getting a document called a Grant of Representation from the Probate Office. Once this has been issued, it gives the applicant the authority to access the deceased’s assets and distribute their estate. Probate also ‘proves’ a Will, if there is one. This means the Probate Office is satisfied that the Will is valid and can be relied upon.
After a loved one dies, the idea of having to go through Probate can seem like an arduous task. However, Probate is ultimately there to protect the beneficiaries. Otherwise, there would be no accountability. Financial institutions would not know to who to release the deceased’s assets. Any ‘questionable’ Wills would also go undetected. Probate allows the courts to check that the Will is valid and that the deceased’s estate is administered by the correct person.
How long does the Probate process take?
Unfortunately, there is no set answer to this question. It largely depends on the size and complexity of the estate. There is a considerable amount of paperwork to complete before you can actually apply for Probate. Sometimes, this will be relatively straightforward. Other times, it will take many months to fulfil.
Often, the most complicated task is completing the Inland Revenue Affidavit. This requires you to list the value of all the deceased’s assets and liabilities at the date of death. It is also necessary to locate the beneficiaries and get their Personal Public Service (PPS) numbers. This can create delays if a beneficiary is missing or does not have a PPS number – perhaps because he/she is not an Irish resident.
Once the application has been submitted, you are then at the mercy of the Probate Office. The Probate Office usually has a significant backlog, so it may be a while before your application is actually processed. Figures released in 2018 found that waiting times vary considerably across the country. On average, a solicitor application takes 11 weeks. Personal applications take longer, with those in Dublin having to wait an average of 48 weeks.
Because of these factors, it is impossible to say exactly how long the Probate process will take. Some will be able to complete the paperwork and lodge an application shortly after the deceased’s death. If the Probate Office has few delays, a Grant could be issued within a matter of months. More commonly, the Probate process takes upwards of six months. For many, it will take a year or more.
The Executor’s Year
Having such a drawn-out Probate process can be very upsetting for those left behind. It can also create difficulties for those responsible for Probate. This is because, under Irish law, there is a concept called the Executor’s Year. This gives the executors and administrators of an estate one year in which to distribute the assets to the beneficiaries.
Once 12 months has passed from the date of the deceased’s death, the beneficiaries are entitled to question the delay. If the beneficiaries have concerns about the actions of an executor or administrator, legal action may be started.
Is Probate required if there is a Will?
Probate is not needed every time a person dies in Ireland. However, there are some common myths about when Probate is (and is not) necessary. Perhaps the biggest misconception is that Probate is not required if the deceased left a Will. This is not true – you may still need to go through Probate, even if there’s a valid Will in place.
So, what about if your loved one died ‘intestate’, meaning without a Will? Again, Probate may still be needed. It is true that one of the purposes of Probate is to ‘prove’ a Will. This might lead you to assume that Probate isn’t necessary for an intestacy situation. Nevertheless, Probate also ensures that authority to administer the deceased’s estate is given to the correct person.
Therefore, it does not really matter whether or not your loved one left a Will – Probate may still be required.
Having said that, the presence or absence of a Will does have an impact on the way in which Probate is handled. This is because if the deceased left a Will, he/she has probably named executors. So long as they are willing and able to act, these are the people who must apply for Probate. There are actually three different types of Grant of Representation. If there is a Will, the executors must apply for a Grant of Probate. If there isn’t a Will, responsibility for the Probate process falls to the deceased’s next of kin instead. This person must apply for a Grant of Administration.
Do I need Probate?
So, when exactly is Probate required? The answer to this question depends on the value of the deceased’s estate and the way in which he/she held these assets.
The value of the estate
Probate is not needed for ‘small’ estates, meaning it is not worth a lot of money. There is no set definition of a small estate. Banks and financial institutions set their own thresholds. Normally, an asset worth less than €25,000 will not be subject to Probate. However, you will need to check directly with the bank or financial institution holding your loved one’s asset. If they confirm that Probate is not necessary, the asset can be dealt with under the small estates procedure instead. This is when the asset is released to the next of kin, so long as an indemnity is provided.
It is not always obvious how much a deceased person’s estate is worth, and whether a bank or financial institution is willing to release the asset without a grant. This means a degree of investigative work may be needed to establish whether Probate is needed.
How are assets held?
If the deceased does not have a small estate, you need to confirm exactly how he/she owned their assets. If they were owned as joint tenants with someone else – and that person is still alive – then they automatically pass to the surviving owner. This is permitted under a law called the Rule of Survivorship. It enables assets, such as the family home, to be directly inherited by a co-owner without a Grant of Representation.
But this is not the case if the deceased owned assets in their sole name, or as tenants in common. In these situations, a Grant of Representation is needed before the assets can be distributed to the beneficiaries.
Therefore, Probate will be needed if:
- The deceased owned a property in their sole name or as tenants in common
- The deceased owned other assets of significant value in their sole name or as tenants in common
In certain circumstances, Probate will also be needed for a joint bank account, even if the co-owner is still alive. This depends on the conditions imposed by the bank or financial institution.
If you are uncertain as to whether or not Probate is required, we recommend that you speak to one of our Probate solicitors. Probate can be long-winded. If you delay the process because you mistakenly thought it was not necessary, you face an even longer wait. In the meantime, the deceased’s assets will be frozen and the beneficiaries cannot receive their inheritance. This can create financial difficulties for those left behind.
Who applies for Probate?
If Probate is needed following the death of your loved one, you need to establish who is responsible for the process. There are strict rules regarding who can apply for Probate. As mentioned above, this depends on the Will.
If there is a Will, it probably names one or more executors. If these people are able and willing to take up the role, then they must be the ones to apply for a Grant of Probate.
However, there are occasions in which the executors have already died, or are no longer able or willing to act. This might happen due to physical or mental ill health, or simply due to personal preference. If so, an administrator must be appointed instead. An administrator must also be appointed if the deceased failed to leave a valid Will in place.
Once again, there are strict rules about who is allowed to be an administrator. The law puts the deceased’s next of kin into an order of priority. This gives a spouse or civil partner the greatest right to act as an administrator. If this is not applicable, priority is given to the deceased’s children, followed by their parents, followed by their siblings, and so on. If there are any disputes as to who should act as the administrator, the Probate Registrar can decide.
What does the Probate process involve?
If the Probate process falls to you, you will want to know what it involves. Every estate is different and has its own intricacies. If you make the application yourself, you will typically need to:
- Calculate the value of the deceased’s assets and debts
- Locate the beneficiaries and obtain their details
- Prepare an Inland Revenue Affidavit
- Complete a probate application form
- Lodge the application with the Probate Office or District Probate Registry
- Attend an interview and swear an oath
This can take up a significant amount of time. Just calculating the value of the deceased’s assets and debts will require professional valuations and numerous calls to financial institutions. You will also need to ascertain whether any lifetime gifts were made. Then there can be various issues to contend with, such as questions over the validity of the Will, tax implications, the rights of cohabiting partners and foreign assets, to name but a few.
The complexities of Probate are not lost on the court service. Their website actually states that if you are going to apply as a personal applicant, you “must be confident of your ability to research and undertake the legal responsibilities” associated with Probate. If this concerns you, you should ask a Probate solicitor to apply for Probate on your behalf. It is better to make this decision at the start of the process because solicitor applications differ slightly to personal applications.
Contact our Probate solicitors
If you want to know more about Probate in Ireland, please contact us at Gibsons & Associates. We can clarify whether Probate is needed following the death of your loved one. If so, we can manage the process on your behalf, removing the burden from your shoulders.
To speak to an experienced Probate solicitor, complete our online enquiry form, or phone us on+353 (0)1 872 3143 today.