What is the Difference between a Will and Probate

Category: General Litigation

A Will is a legal document that records what should happen to your property after your death, along with any other wishes. Probate is a legal process that gives a person, or a group of people, the authority to deal with a deceased person’s assets.

Therefore, both a Will and probate relate to the matter of death. However, they are not the same thing, as we explore in more detail below.

What is a Will?

A Will sets out who should inherit your money, property and other assets after your death, and in what proportion. These people are called your beneficiaries.

If you die without a valid Will in place, you have died ‘intestate’. The state then decides who should receive your assets. This might not align with your wishes. This is particularly true for unmarried couples who are not automatically provided for under Irish Succession Act.

A Will ensures that the right people inherit your assets – and that the wrong people do not accidentally benefit from your estate (‘estate’ being the collective term for everything you own).

A Will also allows you to record other important wishes, such as:

  • Legal guardians for your children, who will be responsible for your child’s upbringing, should both parents pass away
  • Your executors, who will be responsible for winding up your affairs after your death
  • Your funeral arrangements, including whether you wish to be buried or cremated
  • Gifts to charity, if you would like to make a donation to your favourite charity from your estate
  • It is important to update your Will throughout your life to ensure any change of circumstances or wishes are reflected. You can either write a new Will and revoke any previous Wills. Or you can make a small amendment to a current Will by adding a codicil.

What is probate?

Probate, on the other hand, is a process that occurs following your death. Probate is not always needed. If it is necessary, it confirms the validity of your Will (if there is a Will) and gives specified people the authority to handle your assets.

The probate process can be frustrating for your loved ones, but ultimately, it is there to protect your beneficiaries. This is because it places your assets into the hands of people approved by the Probate Office or Registry.

If you have a Will, these people will be the executors named in your Will. If not, it will be your next of kin, which for the purposes of probate is called an administrator. The collective term for executors and administrators is personal representatives.

Your personal representatives – and them alone – are responsible for administering your estate. This involves collecting your assets, paying your debts and distributing your estate to the correct beneficiaries. If they fail to meet their duties, they can be held to account.

Without probate, there could potentially be a lot of confusion over who is entitled to wind up your affairs. But with probate, banks and other financial institutions can feel confident that they are releasing your assets to the correct person.

To avoid any foul play, your assets will remain frozen until probate has been granted. After probate is obtained, your personal representatives can:

Gather in your assets, including stocks, shares and pensions
Sell or transfer your property/other assets
Settle any bills and close accounts
Pay outstanding debts and tax liabilities
Distribute the estate to your beneficiaries

The difference between a Will and probate

So, Wills and probate are not the same thing. It is true that they are both legal mechanisms that relate to the issues of death and dying. However, the key difference is that:

A Will is a legal document that you write and keep updated during your lifetime. It allows you to record your wishes.
Probate is a legal process that happens after you die. It proves your Will and gives a person (or group of people) the authority to administer your estate.
Does a Will affect the probate process?
Nevertheless, a Will does have a bearing on the probate process. This is for three reasons.

1. It determines who applies for probate

When you write a Will, you are asked to name your executors. Your executors are the people you want to carry out the probate and estate administration process after your death.

This gives you the chance to nominate someone you trust, and who is willing and able to perform the role. This can be a relative, friend or professional, such as an accountant. An executor can also be a beneficiary, and it is very common to name a spouse or child as an executor, while at the same time naming him/her as your main beneficiary.

So, if you die with a valid Will in place, your executors will be the ones to apply for probate and administer your estate. If you do not write a Will, this responsibility falls to your next of kin instead. The law creates an order of priority which sets out who can act as your administrator. Priority is given in the following order:

  1. Spouse or civil partner
  2. Child
  3. Parent
  4. Sibling
  5. More distant relatives

2. It determines what Grant is needed

There are three types of Grant of Representation. The type of Grant needed depends on whether there is a Will, and whether the executor can (or wants to) accept their role.

If there is a Will, the executor must apply for a Grant of Probate. However, if the executor is unable or unwilling to act, a Grant of Administration with Will Annexed is required instead. If there is not a Will, the administrator must apply for a Grant of Administration.

It determines who inherits from the estate
A Will sets out who the beneficiaries of the estate should be. There are some rules in Ireland that must be followed, namely that a spouse or civil partner is entitled to a share of the estate. Otherwise, you can leave your assets to beneficiaries of your choosing – including unmarried partners and charities. Your executors should fulfil these wishes as best as possible.

If you die without a valid Will, the Irish intestacy laws decide how your estate should be distributed. Your administrators must then distribute your estate according to these laws, rather than any wishes you may have expressed verbally during your lifetime.

3. Is probate needed if there is a Will?

It should be noted that the presence or absence of a Will does not influence whether or not probate is needed. We often hear people say that probate is not necessary because there is a Will, while others say the opposite – that probate is not required because the deceased died intestate. In fact, both statements are inaccurate. Probate may be needed if there is a Will, and if there is not a Will.

When is probate needed?

That leads to the question – when is probate needed? As mentioned above, probate does not happen every time a person dies in Ireland. In fact, it is only necessary if:

The deceased owned assets above a certain value, and
The deceased held these assets in their sole name
If the assets left behind are considered small, the bank or financial institution may be willing to release the asset without probate. Every bank and financial institution has its own threshold. Typically, probate is not needed if the asset is worth less than €25,000.

If the deceased did own assets above a certain value, then it is necessary to establish how these assets are held. If there is a joint owner, and this owner is still alive, then they automatically pass to him or her. This occurs under the Rule of Survivorship and probate is not required.

The probate process

If probate is needed after a person’s death, their assets will be frozen. The probate process should then begin shortly afterwards. If there is a Will, the executors named in the Will are asked to act. If there is not a Will, or the executor is unable or unwilling to act, an administrator must be appointed instead. The deceased’s next of kin can apply to be the administrator.

The personal representative must then obtain a Grant from the Probate Office or District Probate Registry. To achieve this, he or she must:

Calculate the value of the deceased’s assets and debts
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
If the Probate Office or District Probate Registry is satisfied with the application, a Grant of Representation will be issued. The executor or administrator then has the authority to access, manage and sell the deceased’s assets.

The personal representative can then begin the process of administering the deceased’s estate. This involves:

Collecting in the deceased’s assets
Paying any debts
Selling or transferring property
Distributing the estate to the beneficiaries according to the terms of the Will or the Succession Act
Preparing estate accounts

Executors beware!

These may seem like short checklists, but in fact, the role of an executor or administrator entails a lot of work. To make matters worse, they can be held personally accountable for any mistakes or delays. If this causes a beneficiary or creditor to suffer a loss, the executor or administrator may be liable for the cost.

Personal representatives also have very little time to fulfil their duties – all of which must be done while grieving the loss of a loved one. In fact, they have one year to distribute the estate’s assets, starting from the date of the deceased’s death. This is called the Executor’s Year.

Once 12 months have passed, the beneficiaries can ask a personal representative to explain their actions. If there are any concerns, the beneficiaries can begin legal action against the executor or administrator.

Due to the complexities and risks involved in the probate and estate administration process, personal representatives typically instruct a probate solicitor to act on their behalf.

Contact our solicitors

If you are the executor or administrator of an estate, our probate solicitors can help you. We specialise in probate law and can manage the entire process for you, no matter what the size or complexity of the estate.

Alternatively, if you want to formally record your wishes, our Wills solicitors can draw up a legally-sound Will that meets your needs. Or, you would like help with the probate process, please contact us at Gibson & Associates.

Don’t delay, please call us now on +353 1 264 5555 or complete our Online Enquiry and we’ll be delighted to help you.

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