A Complete Guide to Ireland’s Probate Process
When a loved one dies, it can be difficult to know what to do next. The legal processes involved in dividing up a person’s estate can seem complex and hard to understand, creating additional stress at what will already be a difficult time for the family.
Nevertheless, the probate process plays an essential role in safeguarding the rights of the deceased to make important decisions about how their money, property and personal belongings will be distributed, while also ensuring that their families and loved ones will be taken care of after they are gone.
To make this easier to understand, the legal experts at Gibson & Associates have put together a complete guide to Ireland’s probate process, giving you a clear understanding of what needs to be done – and when – in order to properly administer an estate.
The basics of the probate process
Although probate can involve many legal intricacies, it is important to remember that the main goals when dealing with probate are actually quite simple:
- Before someone dies, they will want to have a say in how their estate will be divided, and who will inherit their belongings. These wishes should be expressed in a legally binding will
- A person’s will should specify one or more individuals who will be responsible for ensuring their intentions are carried out after they die. These individuals are known as the executors of the will
- When the person dies, the executor will need to apply to the Irish Probate Office for official permission to start executing the will. This is known as a grant of representation, or most commonly a grant of probate
- Once the grant of probate has been received, the deceased’s assets can be divided up and dealt according to the contents of the will, while meeting all necessary legal obligations. This is called administering the estate
- If no will has been prepared, the deceased’s estate will be distributed according to rules set out in legislation. In these cases, rather than obtaining a grant of probate, the document issued to allow their affairs to be dealt with is called a grant of letters of administration
Naturally, the complexity of administering an estate will depend on the individual circumstances of your case, which is why it is always recommended to get the advice of a trained solicitor in order to avoid any potential delays or conflicts arising during the process.
Probate: a step-by-step guide
Probate can be a time-consuming process, which is why it is important to get the ball rolling as soon as possible to ensure the beneficiaries of the will receive their entitlements as soon as possible.
Step 1: Locate the will (if there is one) and obtain the death certificate
When a loved one dies, you should move quickly to get the necessary documentation together and work out the next steps. This should start with obtaining the will itself, as this will provide information on who the chosen executor(s) of the estate is. If a will has not been made, you will need to obtain a grant of letters of administration.
Some of the most common will storage options include:
- Being kept with the solicitor who wrote the will
- Held by a will writing service
- Kept at home in a safe place
You must also obtain a copy of the person’s death certificate, as it will be necessary to prove their death before the probate process can commence.
Step 2: Appoint a solicitor
Before doing anything else, it is best to secure the services of a professional probate solicitor to guide you through the legal process. Your solicitor can provide you with crucial advice on the legal obligations you will need to fulfil, the paperwork that needs to be completed and the best ways of ensuring that the estate is administered comprehensively and efficiently.
As a general rule, probate solicitors will be paid a small percentage of the value of the estate in exchange for their services – you will be able to discuss this during your initial meeting with the legal team.
Step 3: Work out what needs to be done
Working with a solicitor, the executor of the estate should review all of the assets and liabilities of the deceased in order to work out what is owed, which properties need to be transferred, and what needs to happen next.
By reviewing all of the relevant documentation – including any will, bank statements, building society books, insurance policies, saving certificates, shares, stocks, title deeds and so on – you should aim to find out the following:
- Who will inherit the deceased’s money?
- Who will inherit their property, possessions and physical assets?
- Who will become the legal guardian of children under the age of 18?
- How will any business or commercial assets be handled?
- What will happen to any property jointly owned by the deceased with another person?
- Has the deceased specified how their cohabitants or civil partners will be cared for?
- Are any of the beneficiaries under the age of 18, or suffering from a disability? If so, how should this be handled?
- Are overseas properties or assets included in the will? If so, will different laws apply?
- What is to be done with any digital assets or online accounts left behind by the deceased?
- Has the deceased left behind any outstanding debts? From which accounts are these to be paid?
- What will happen to any property or assets that were not covered by the will?
Another question that should be considered separately is whether or not any taxes need to be paid on the estate, or if there are any available tax relief measures that may be applicable. When working this out, you and your legal team should consider the following:
- Capital Acquisitions Tax (CAT), a tax on gifts and inheritances charged at a rate of 33% above a certain threshold, and depending on the relationship between the beneficiary and the giver. You can find out more about this tax here
- Any income tax and capital gains tax obligations that may arise during the administration of the estate
Once this has been completed, your solicitor will be able to prepare a Statement of Affairs (replacing the Inland Revenue Affidavit), which sets out the deceased’s assets, liabilities and beneficiaries, ready to be submitted as part of the probate application process.
Step 4: Apply for a grant of representation
When all of the relevant documentation has been collected and signed, your solicitor will file the Statement of Affairs with Revenue via their online portal. Revenue will issue a notice of acknowledgement and the solicitor will lodge the documents with either the Central Probate Office in Dublin, or your local District Probate Registry, in order to obtain a grant of representation.
Once all of these forms have been received and reviewed thoroughly by the Probate Office, you will need to swear the executor’s oath, affirming that you believe the will in question is the last will of the deceased, that you are the chosen executor and that you will administer the will in accordance with the law.
It will also be necessary to pay a fee, the exact value of which will depend on whether you are using a solicitor or not. If you are using a solicitor, check the fees here; for those making a personal application, the fees can be found here. It is worth noting that the Probate Office fee is twice as high when applying without a solicitor, as this will require the Probate Office to complete the documents that a solicitor would normally fill out.
Once you have paid the relevant fee, you will receive the grant of probate.
Step 5: Collecting and distributing the assets
Once all of this has been completed, the only thing remaining to do will be to actually administer the estate. This will involve several responsibilities:
- Gathering together all of the deceased’s assets, including any money held in bank accounts and pensions, as well as obtaining title documents for any property that was owned by the deceased
- Calling in any outstanding debts owed to the deceased
- Paying off any debts or taxes owed by the deceased
- Covering the cost of the funeral expenses
- Ensuring all of the beneficiaries and next of kin receive what they are entitled to, and that ownership of property is passed on correctly in accordance with the law
If any legal conflicts arise over the will or the administration of the estate, as executor you may also be expected to represent the deceased in legal actions, and to settle legal actions against the estate.
With the process completed, your lawyer can then prepare the final estate accounts, providing an official record showing exactly how the assets and liabilities of the deceased were handled.
How long does the probate process take?
When dealing with probate, the issue of how long the process takes is a common question. Because the timescales involved in administering an estate depend on the complexity of the circumstances, it is not possible to provide a simple estimate of exactly how long this will take.
However, you should bear the following timescales in mind:
- As the executor of the estate, you will be legally required to provide beneficiaries of the will with their entitlements within one year of the date of death. If you fail to do so, legal action may be taken against you
- When applying for a grant of probate, it can take between three and six months to receive authorisation, depending on the size of the estate and the completeness of the paperwork you provide
Due to the legal deadlines and lengthy processes involved, it is advisable to take action on probate matters as soon as possible, while seeking advice from a solicitor to ensure that any potential roadblocks are dealt with and overcome.
Potential exceptions and complications to the probate process
Due to the complexity of probate law, there are a number of potential exceptions and complications that could alter or disrupt the typical flow of the legal process. As the executor, you will need to be aware of these and work with a solicitor to find a way around them.