Enduring Power of Attorney in Ireland
Dublin City Centre
Enduring Power of Attorney in Ireland | What is an “EPA”?
Enduring Power of Attorney in Ireland is an important tool in future planning.
An Enduring Power of Attorney in Ireland (an “EPA”) may be one of the most important documents for your health and well-being and the future management and planning that you create.
It is a powerful document and enables as a person now to future plan their legal situation for a time when help may be needed across a range of situations and decisions.
You can plan your EPA broadly to encompass all matters or it can be narrowed to whatever financial, legal, and/or personal care decisions you wish to specify.
At Carmody Moran Solicitors we are on hand to provide expert legal advice around your future legal planning including reviewing your Will and initial advice about making an Enduring Power of Attorney in Ireland. The legal fees to make an EPA start at €750 plus vat and outlay. More information is available on making an Enduring Power of Attorney in Ireland in our free download guide to making an EPA available on our website or by telephoning Carmody Moran Solicitors Blanchardstown, Castleknock, and Dublin City Centre in our City Centre offices at 27 Mount Street Upper, Dublin 2, serving the Dublin City Centre and South County Dublin areas including Sandymount, Ballsbridge, Ranelagh, Rathmines, Terenure, Templeogue, Dublin 4, and Dublin 6, Blackrock, Stillorgan, and Dundrum on 018272888.
If you prefer we can arrange to have an initial consultation starting at €225 (including vat) and this gives you an opportunity to review your situation and ask the expert questions regarding your specific circumstances.
Do I need an Enduring Power of Attorney in Ireland?
The EPA is prepared and put in place as part of the provision for future planning.
An EPA only takes effect when an individual becomes mentally incapacitated and no longer capable of managing their affairs, at which time an application is made to register the Enduring Power of Attorney in Ireland.
The person making the Enduring Power of Attorney in Ireland is referred to as the Donor. In a highly organised world, everyone who is approaching midlife would address their mind to their future planning and would not wait until a significant health diagnosis to consider putting in place an EPA. While many of us would think about a world with us not in it as the worst-case scenario in terms of our future planning, equally a devastating accident or health diagnosis leaving us unable to make our own personal care decisions or attend to our own financials is equally as devastating as death and demands the same level of future planning an making a Will or other future provision for ourselves and our loved ones. The Americans refer to this as ‘legal life planning, and it is a relatively new concept in Ireland.
At Carmody Moran Solicitors we are on hand to provide expert legal advice around your future legal planning including reviewing your Will and initial advice around making an EPAs, contact Carmody Moran Solicitors at Blanchardstown, Castleknock, and Dublin City Centre in our City Centre offices at 27 Mount Street Upper, Dublin 2, serving the Dublin City Centre and South County Dublin areas including Sandymount, Ballsbridge, Ranelagh, Rathmines, Terenure, Templeogue, Dublin 4, and Dublin 6, Blackrock, Stillorgan, and Dundrum on 018272888.
We can arrange to have an initial consultation starting at €225 (including vat) and this gives you an opportunity to review your situation and ask expert questions regarding your specific circumstances and commence the process of planning and safeguarding your legal future.
What does making an EPA involve?
The person putting in place the EPA is known as the Donor.
The Donor’s appointed person or persons under the Enduring Power of Attorney in Ireland are referred to as the Attorney/ Attorneys. Lawyers use these terms and you will see these terms referred to in explaining:
- The considerations in making an EPA, and
- The process of making an EPA, and
- The benefits of making an EPA.
Just like making your Will, it is very important when putting in place an Enduring Power of Attorney in Ireland that the correct procedure is followed to ensure that it complies with the law. At Carmody Moran Solicitors in Dublin City Centre, Blanchardstown, and Castleknock, we will explain in plain English how this procedure works and the considerations you need to bear in mind in putting in place an EPA.
Our expert legal advisors at Carmody Moran Solicitors will meet with you and advise you on all aspects of an EPA. More information is available on making an EPA in our free download guide to making an Enduring Power of Attorney in Ireland available on our website or by telephoning Carmody Moran Solicitors, and we can meet with you at Blanchardstown, Castleknock, and Dublin City Centre. Telephone us today at 018272888.
Enduring Power of Attorney in Ireland
What are the procedure and legal considerations of making an EPA?
An EPA is a formal legal arrangement and like all legal documents, it is important that the law is followed.
There are a number of pieces of legislation that are applicable:
1. Powers of Attorney Act 1996,
2. Enduring Powers of Attorney Regulations 1996,
3. Enduring Powers of Attorney (Personal Care Decision) Regulations 1996,
4. Rules of the Superior Courts
The parties involved are:
- The donor: you
- The Attorneys: the person or people you appoint to look after your affairs
- Your GP / treating doctor
- The Notice Parties; 2 people to whom the making of the EPA must be advised.
When completing an Enduring Power of Attorney in Ireland, one of our expert team at Carmody Moran Solicitors will usually meet with you at a morning consultation. The first person to sign the EPA will be you as the Donor, after receipt of legal advice.
Your appointed Attorney(s) will also need to sign, ideally on the same day or as close as possible as will your GP when completing the necessary legal certificate confirming capacity.
Two people, at a minimum, must be given formal notice of the making of an Enduring Power of Attorney in Ireland. The two people are called “Notice Parties”. One of the Notice Parties must be your next of kin.
In short, the order of priority for at least one of the Notice Parties is;
- Spouse, (if you are widowed so this will not apply, and then the priority then falls to the next category on the list for inclusion),
- A child followed by more remote categories of relationships,
- A parent, sibling, grandchild, nephew, or niece, in that order.
The legislation does not provide for exceptions in relation to Notice Parties, as your Solicitors, Carmody Moran will attend to all of the service requirements and drafting and procedural steps to put your Enduring Power of Attorney in Ireland in place. We will do so with the utmost care and attention to make the process speedy, stress-free, and accurate. We will look after all of these matters on your behalf so you do not have to worry about the procedural elements.
You are free to revoke the EPA at any time before its registration.
Our expert legal advisors at Carmody Moran Solicitors will meet with you and advise you on all aspects of an EPA and this will involve ensuring to all technical aspects have a legally valid and enforceable Enduring Power of Attorney in Ireland created. More information is available on making an EPA in our free download guide to making an EPA available on our website or by telephoning Carmody Moran Solicitors, and we can meet with you at Blanchardstown, Castleknock, and Dublin City Centre. Telephone us today at 018272888.
What do I need to consider when making an EPA
You need to consider:
- Who do I trust to act as my Attorney?
- Who will be best placed to make decisions on my behalf in line with my own will and preferences?
- What decisions do I wish the Attorney to make on my behalf around my Property and Affairs, and my Personal Welfare / Personal care decisions?
- Do I wish to give the Attorney very broad powers, around these items?
- Do I wish to limit them to very specific instances?
- Who is available and eligible to assume the role of Attorney(s)?
- Is there any potential for an Attorney to have a conflict of interest, e.g., spending your money providing for you during your lifetime, over preserving a potential benefit they could gain (i.e., on inheritance) if the money is not spent?
- Who is available and eligible to assume the role of Notice Parties?
At our Carmody Moran Solicitors, our experienced and expert Solicitors will offer advice and guidance around these considerations in consultation and discussion with you.
More information is available on making an Enduring Power of Attorney in Ireland in our free download guide to making an EPA available on our website or by telephoning Carmody Moran Solicitors, and we can meet with you at Blanchardstown, Castleknock, and Dublin City Centre. Telephone us today at 018272888.
What decisions do you want the Attorney to make?
You do need to give consideration as to what curtailments or limits you may wish to put on any of the EPA powers. For example:
- You could limit your EPA to personal care decisions only
- If you give financial powers, these can be very broad, and can include the sale of your house
- Payment of the Attorneys is not recommended, but you may wish to provide for repayment of out of pocket expenses
- If you give your Attorney(s) general power in relation to all your property and affairs, they will be able to deal with your money or property and may be able to sell your house
If you do not impose restrictions on your Attorneys then they will be able to use your assets to benefit themselves or others whether or not this is line with your expected wishes.
You may have specific wishes in terms of maintenance or gifts and if you specifically authorise it, your Attorney(s) will be able to use your money to make gifts, but only for reasonable amounts in relation to the value of your money and property and subject to any conditions or restrictions you may impose.
At our Carmody Moran Solicitors, our experienced and expert Solicitors will offer advice and guidance around these considerations in consultation and discussion with you.
More information is available on making an Enduring Power of Attorney in Ireland in our free download guide to making an EPA available on our website or by telephoning Carmody Moran Solicitors, and we can meet with you at Blanchardstown, Castleknock, and Dublin City Centre. Telephone us today on 018272888.
What are the Benefits of Making an EPA?
The EPA makes it easier for your loved ones to deal with your affairs should you become incapacitated and also gives you peace of mind in knowing that what you wish to happen with your affairs and your future care will happen.
As of January 2022 without an Enduring Power of Attorney in Ireland being in place or the provisions of the long awaited Assisted Decision Making (Capacity) Act, 2015 being fully operative, the current law provides that the only alternative substitute decision-making mechanisms available where a person becomes unable to look after their own day to day care and legal affairs, is by way of an application to the Courts to seek an Order making the person a Ward of Court. This is likely to change as the various provisions of Assisted Decision Making (Capacity) Act, 2015, come into force.
What is Wardship?
Previously wardship application could be made to the Court to have a person made a Ward of Court if they lacked legal and medical capacity.
The purpose of wardship was to protect a vulnerable person and the property of an individual when they lack the legal capacity to do so themselves. The High Court made an Order entering someone into Wardship after being satisfied on the basis of the medical evidence available that the person should be deemed to lack legal capacity and they are incapable of managing his/her own affairs and a Committee for the Ward was appointed.
From the 25th of April 2023, the Wards of Court’s office has ceased accepting wardship applications. All new applications relating to persons requiring capacity support are replaced by Assisted Decision Making Arrangements. Those requiring Court assistance will now advance via a Circuit Court scheme rather than the previous High Court wardship process.
For those already in Wardship, the Wards of Courts Office will now commence the three-year review and discharge of all adult wards of Courts from Wardship into the new Assisted Decision Making Arrangements.
The new framework has an overarching focus on person-centred planning that brings Irish law in line with the requirements of the United Nations Convention on the Rights of People with Disabilities (UNCPRD). The operation of the Assisted Decision Making Capacity Act 2015 replaces substituted decision-making with a progressive and empowering rights-based approach for individuals who previously were Wards of Court. It intends to maximise autonomy for persons who require support to make decisions about their personal welfare, property, and financial and legal affairs.
On review following the Court application, the Court will be required to determine what is now appropriate. The Court can declare that the ward does not lack capacity and should be immediately discharged from wardship as they have legal capacity, or the Court can declare that the ward lacks capacity and the person will transition to the new system. This Court application to discharge the person from wardship can be made to the wardship court at any time by the ward, the committee of the ward, or, with the consent of the wardship court, by a relative or friend of the ward.
The Act requires that either way, even if such an application is not made, within three years of the commencement of Part 6 of the 2015 Act, all existing wards will be discharged from wardship and the decision-making capacity of each person who is a ward must be reviewed by the wardship court.
What should I do if I am a Committee of a Ward?
Now that the operation of the Assisted Decision Making Capacity Act 2015 has advanced a Committee of a Ward is entitled to make an application to the wardship court for a review of the person’s capacity. The Court will then decide whether a current Ward of Court requires a Decision Supporter.
All current adult Wards of Court will have the opportunity to be heard by the wardship court when their cases are being reviewed and will have access to representation and legal aid as part of this process.
In the interim, the Office of the Wards of Courts remains responsible for all ongoing wardship matters during this period of transition.
The former Committee may now be appointed by the former ward as a decision-making assistant or co-decision-maker. The wardship court may also appoint a former committee as a decision-making representative.
The wardship committee should consider the timing of the application to the wardship court and consider obtaining legal advice as to which of the new Assisted Decision Making Arrangements is necessary or appropriate, if any. The law has been significantly now advanced and overhauled in this area of practice, and the Committee should consider obtaining expert legal advice to help navigate this transition.
What are the Assisted Decision Making Arrangements?
The Assisted Decision Making Arrangements are as follows: a Decision Making Assistant, a Co-Decision Making Assistant, and a Decision Making Representative. These are three different and distinct avenues of supported decision-making, and they are operated and supervised by the Decision Support Service.
Carmody Moran Solicitors acted for many families and persons in bringing Wardship Applications and have significant experience in this area of law and mental health law.
Both partners in Carmody Moran Solicitors are highly qualified and experienced Mental Health lawyers and have acted as Committee in wardship matters and advised families as they navigate this process. Anthony Carmody has regularly been appointed as Guardian Ad Litem by the High Court in Wardship cases. Anthony has brought many high-profile and significant judgments and cases under the Mental Health Act, 2001 including the seminal Supreme Court case of IF, and Court of Appeal, High Cases of R.G.F., B.F., and A.X., and other nonreported cases.
Both Niamh Moran and Anthony Carmody, Partners, are regularly sought out for advice by other legal and medical colleagues for advice around legal capacity and wardship issues such as their expertise in the area and their reputation for care and ethical representation of vulnerable persons and their families in navigating wardship and other complex legal problems, including probate disputes and inheritances for vulnerable persons.
If you are facing complex wardship situations or require expert legal advice on the law concerning vulnerable persons we can arrange to have an initial consultation with a follow-up letter of advice, which gives you an opportunity to review your situation and ask the expert questions regarding your specific circumstances. We can meet with you at Blanchardstown, Castleknock, and our offices at Mount Street Upper, off Merion Square, in Dublin City Centre. Telephone Carmody Moran Solicitors at 018272888 and your query will be handled sensitively and confidentially.
Frequently Asked Questions of our Probate Solicitors in Dublin City Centre and Blanchardstown.
GLOSSARY OF TERMS
Testate – A person who dies having made a valid Will is deemed to have died testate.
Intestate – A person who dies having not made a Will is deemed to have died intestate.
Will – A legal document that has very strict execution requirements to be valid and deals with the deceased’s wishes for his or her assets and responsibilities after their death, subject to certain rights of spouses and children.
Estate – Everything owned by a deceased person is referred to as their legal Estate. After payment of debts and taxes, the Estate is divided amongst beneficiaries. If there is a Will or Estate Planning done the distribution will be in accordance with the Will. If there is no Will the distribution will take effect in accordance with the rules as set out in law in the Succession Act 1965.
Enduring Power of Attorney – often referred to as an EPA. This is an important tool in future planning. You can give decision-making and other powers such as those around finances to another person called an Attorney which will only take effect when an individual becomes mentally incapacitated and no longer capable of managing their affairs, at which time the EPA is registered.
Inquest – a public enquiry held in connection with the circumstances surrounding a death where that death has been because of unnatural causes.
Assisted Decision-Making Arrangements
With effect from April 2023, a new three-tiered system of assisted decision-making replaces the wardship system and provides a framework based on the will and preference of the decision-maker. These new arrangements are as follows: a Decision-Making Assistant, a Co-Decision Making Assistant, and a Decision Making Representative.
From the 25th of April 2023, the Wards of Court’s office has ceased accepting wardship applications. All new applications relating to persons requiring capacity support are replaced by Assisted Decision Making Arrangements. Those requiring Court assistance will now advance via a Circuit Court scheme rather than the previous High Court wardship process, and the Wards of Courts Office will now commence the three-year review and discharge of all adult wards of Courts from Wardship into the new Assisted Decision Making Arrangements.
Should I make a will?
There are many benefits to making a will/estate planning, while the consequences of not doing so can be very costly for the estate and disastrous for the survivors particularly if there are children involved.
Children under 18 years, whose parents have not made a will, stand to lose the most. Without a will, the next of kin of these children will have to make an application to the court to have executors and trustees appointed to administer the assets of the estate. All discretion is taken away from the family and decision-making is left to bureaucracy. The cost and stress can be enormous.
A Will is not just relevant for people with substantial assets, it is relevant for all persons who have responsibilities.
In the absence of a Will control is effectively lost over the distribution of assets on death and the provisions of the Succession Act 1965 apply and the law determines who is to inherit and who is to be responsible for the administration. Unfortunately, in many cases, this can be quite often contrary to what the deceased person wished for and can result in the most unsuitable person assuming the role of a personal representative. Contact our probate solicitors in Dublin City Centre if more information is needed.
How do I Write a Valid Will?
There are certain steps you must take in order to ensure your will is valid and not open to challenge. Firstly, you need to consider all of your assets and if you need to make “proper provision” for anyone. A valid will must be in writing and should include information such as your full name and address, details of any executor(s) you wish to appoint, and revoke any earlier will you may have made. A testator is assumed to have capacity unless the contrary is proven.
At Carmody Moran Solicitors LLP our Wills and Probate Solicitors in Dublin will send you a complete information pack and an instruction sheet to help you prepare your Will, we as probate solicitors will then work through your instructions with you and discuss you wishes and offer our expert guidance and advice to help you prepare your Will and guard against any future challenge to your wishes.
One of the biggest reasons for contesting a will is that the person making the will (testator) did not have any, or any adequate capacity to make that will. If you are under the age of 18, you will not have the legal capacity to make a will unless you are married. An individual may not have capacity as a result of certain illnesses, age-related memory problems, or disability.
At Carmody Moran Solicitors LLP our probate solicitors in Dublin City Centre have experience of dealing with Wills challenged on the grounds of insufficient capacity to make the Will and acting on behalf of unhappy beneficiaries who believe that they were not adequately provided for, for example in the Will of their parent. We bring this expertise to the preparation of Wills on behalf of our clients. The best protection against a claim incapacity is putting an affidavit of medical capacity with the Will at the time of making it so there is a contemporaneous record of capacity. Indeed, protecting your intentions and having a record of your Will Instructions is one of many reasons it is so important to seek the assistance of an experienced Wills and Probate Solicitor when making your Will and not just to go for the cheap fix!
Just because a person is getting older, it does not mean that they will not have the requisite capacity to make a will. If in doubt, a medical report can be obtained to prove a person has capacity. It is important to seek full and adequate legal advice to determine if and when such a report is required. While a stationary form home-made Will may bring you comfort in writing up your wishes, there is no guarantee that the Will is enforceable nor is there the expertise to stand over your Will in the future, in comparison to having an experienced Wills and Probate Solicitor prepare your Will.
Proper provision for children
The first thing to note here is that “children” means just that: the children of the Testator
A person making their Will, known as the testator, has a duty to their children, even on death, to provide for them into the future. This duty may have been satisfied during the testator’s lifetime, but this will depend on the individual circumstances of each family and the testator’s wealth.
This provision is particularly important if the testator has a vulnerable dependent who requires extra care going forward. If you feel that a family member may have additional needs after your death, getting adequate legal advice can prevent difficulties down the road.
At Carmody Moran Probate Solicitors in Dublin, we have acted in numerous claims against Estates generally against a parent for not making proper provision. This can be for a young child for example whose parent dies suddenly and makes no provision for them, or a section 117 of the Succession Act, a claim can equally be taken by an adult child.
There are many considerations when making your Will and Carmody Moran Solicitors expert Wills and Probate Solicitors are on hand to guide you as you make these important life and estate planning decisions when making your Will. Make sure to get in contact with us here for help today.
The case of ABC Deceased
When a testator signs their own will, they will require 2 witnesses to sign the will in the presence of the testator. It is important that both witnesses sign together on the same day. Be mindful that the witnesses to a will should not benefit from that will in any way. Any gift left to a witness will not be valid.
These are some of the special formalities around making a Will. You can appreciate from reading all that is involved in making your Will, why this is not a cheap and easy task if your Will is to be valid and your wishes safeguarded. It takes care, expertise, and specialist knowledge to make a valid Will and one that is safeguarded from future attacks, and our specialist Probate Solicitors are experts in their area to help guide you as you make your Will.
A first meeting with my Probate Solicitors regarding the probate – what should I bring?
Some useful information to bring with you to the first appointment with your probate solicitors in Dublin or anywhere else would include:
- A copy of the Will or original, if available
- The Medical Certificate or Death Certificate, if available
- The Deceased’s PPS Number
- Any social welfare book held by the Deceased
- The Funeral Bill
- Any financial documents that are available
- The names and addresses of the next of kin
- Details of the Deceased’s personal circumstances, for example, marriage certificate, occupation, divorce order, children’s names, and ages.
I am planning on making a Will but I would like to do it myself – what do I need to think about?
All of your property (personal belongings, real estate, bank accounts, cash, etc) is considered to form your “estate” when you die. This may include your own personal property, the property you own with someone else (joint property), or property which you may own in a small percentage (e.g., shares) You should consider what you wish to pass on and to whom. Be as specific as possible, i.e., specify bank account numbers and not just the bank name.
You can leave a gift to your spouse, children, grandchildren, friend, neighbour. It is entirely your decision. You may also wish to leave a legacy to a charity or make a one-off donation.
You have the option of forming a trust for the benefit of your family, in order to secure their financial wellbeing going into the future.
Be mindful that there are different legal and financial obligations depending on whether you are married or not. There is no inheritance tax between spouses. However, if you are not married and wish to leave a gift to a partner, child, or friend, it can be very expensive for them.
Some people will create their own will in order to save time and legal costs. Even if the will has been drafted in accordance with the required principals, it is still open to challenge before the Court. If a testator has not taken proper legal advice, it can easily be assumed that the will is not valid. This is not necessarily true, but it can be quite costly if a challenge is brought before the Courts.
Mr. Justice Senan Allen of the High Court of Ireland stated In the Matter of the Estate of Patrick John Mannion  IEHC 117, that when a will was prepared without the benefit of legal advice, the thinking was that it would save paying a Solicitor to prepare it on his behalf. However, a challenge to the High Court was very costly indeed and was ultimately paid from the estate of the testator, he stated “If in a roundabout way, Fr. Mannion’s object that Mr. Shields should administer his estate has been achieved, his object in avoiding lawyers’ fees has fairly spectacularly failed. The costs of this application must be borne by his estate.
A homemade or a generic stationary Will might seem like a great saving. It may save €300 to €500 in legal fees, depending on the complexities of the Will, however, if challenged in the High Court the costs to the Estate ultimately could cost many, many, multiples of that sum, indeed a six-figure sum is not out of the question for the cost of a High Court hearing allowing for numerous sets of legal costs between the Estate and the Will challenger, and beneficiaries. Taking expert advice in your legal life planning from highly experienced Wills and Probate Solicitors could ultimately be the best value legal advice you spend when you consider the alternative ‘bleak house’ type scenario.
The case of Mannion above, is not the only recent case that demonstrates the value in having legal expertise and input into the making of your Will.
Ms. Justice Úna Ní Raifeartaigh stated in the similar case of In the Matter of the Estate of Mary Philomena Maureen McEnroe  IECA 28 that “The appellant had no choice but to bring the application in order to get a grant and administer the estate, and the difficulty arose out of the actions of the deceased herself, not by reason of any conduct on the part of the appellant. Accordingly, we will grant the costs of the appeal and reverse the High Court decision and award the High Court costs to the appellant also, both to come from the estate in due course.”
Not getting proper legal advice ultimately cost the deceased estate a significant sum, which is clearly not what the testator intended. It is always beneficial to seek legal advice. The testator may have saved the small fee by not going to a solicitor, but ultimately cost her estate legal fees in excess of €250,000.
If you have any further questions or need any help get in contact with our Wills and Probate Solicitors in Dublin by using the enquiry form here.
Death of a loved one, where to start?
This is obviously an upsetting and distressing time. Making a Will/Estate Planning can help you plan what is to happen in the aftermath of a death but nothing can ever adequately prepare us for the loss of a loved one.
Our Probate Solicitors in Dublin are on hand to help and guide you through the process of obtaining a Grant of Probate or Administration and we will be happy to meet with you at your convenience and explain the process involved. We can help you apply for the Death Grant and deal with the funeral expenses. We can help you make searches to see if your loved one made a Will. We can help guide you through making important decisions regarding the deceased’s property and financial affairs and personal belongings (these matters are often collectively referred to as the Deceased’s Estate.
A person who dies having made a valid Will is deemed to have died testate.
A person who dies having not made a Will is deemed to have died intestate.
What is the Grant of Probate?
This is the document that issues from the Probate Office and gives the Executor the power to deal with the Estate and administer it. When a person dies intestate or partially intestate (if the will was not valid) this is often referred to as a Grant of Administration Intestate. There are various forms of a Grant of Administration Intestate. This also involves taking out an insurance bond for the Estate called an Administration Bond and it can involve more complex legal issues as generally there is no Will or alternatively an invalid Will.
Contact our Probate Solicitors in Dublin here for further information.
What is the Grant?
If the Estate is Testate a Grant of Probate is extracted and this person is known as an Executor.
If the Estate is Intestate or the Will was partly or totally invalid a Grant of Administration is extracted. There are various forms of Grant of Administration.
If you need further information contact our probate solicitors in Dublin City Centre here.
Who is the personal representative?
This is the Executor or Administrator appointed under the terms of the Will or if there is no Will the provisions of the Succession Act 1965. This person or persons become responsible for administering the Estate and dealing with the affairs of the deceased person.
The Personal Representative generally instructs their solicitor to help them perform their duties including matters such as:
- Taking all reasonable steps to secure any property and any valuable assets
- Going through the Deceased’s papers
- Protecting the assets of the Estate
- Making sure there is insurance for any items that should be insured
- Identifying what is in the Estate
- Ascertaining what debts and expenses have to be paid
- Dealing with the tax liabilities of the Estate.
The Personal Representative is generally the person who extracts the Grant of Probate or Grant of Administration to the Estate. In limited circumstances, it may be possible, to administer the Estate without extracting a Grant. To find out more contact our probate solicitors in Dublin on 01-8272888 or use the quick enquiry form here.
How long does it take to obtain the Grant of Probate?
The law allows for a time of one year from the date of death for a personal representative and this is often referred to as “the Executor’s Year”.
The time however very much depends upon the circumstances of each individual Estate for example these factors can include:
- the type of assets that are involved and the decisions that are being made as to how to deal with them,
- the tax affairs of the deceased,
- the solvency of the deceased,
- the liabilities of the Estate
- the size of the Estate,
- the number of beneficiaries and the availability of PPS numbers
- whether the beneficiaries have received previous inheritances and gifts that now requires specialized tax advice
- the speed of outside agencies for example banks, valuers, etc.
- whether the Estate is testate or intestate
- any difficulties identifying if a will was made or not or its validity
- any challenges to the Estate.
It will usually take upwards of three to six months before a grant of representation but it can take considerably longer if difficulties are encountered. For further information contact our Probate Solicitors in Dublin on 01-8272888 or through the quick enquiry form here.
What is an Inquest?
An Inquest is an enquiry in public held in connection with the circumstances surrounding a death. An Inquest must be held by law, where the death might be deemed to be due to unnatural causes.
The purpose of the Inquest is to establish and publicly record the facts surrounding the death. A Coroner presides and the Inquest can sit with or without a jury. The Inquest can deliver a range of verdicts such as accidental death, misadventure, open verdict, suicide, to name but a few.
Certain persons are entitled to be legally represented at Inquests, although this is not mandatory by law. This is however a distressing time for families and our expert legal team can help you deal with this process and advise you of the process in a confidential and sensitive manner. We can assist you during this traumatic time and we have provided representation to families in cases where there has been medical negligence, misadventure, or an accident, and our Probate Solicitors in Dublin City Centre can assist you through the Inquest process and advise you on any further legal action as may be appropriate.
Can making a Will reduce inheritance tax (capital acquisitions tax)?
What is Inheritance tax?
Inheritance tax is a tax payable by a beneficiary of a will once their tax-free threshold is exceeded. Inheritance tax is a legal obligation. However, there is no tax applicable to inheritance or gifts that pass from spouse to spouse.
Once the value of inheritance reaches the threshold, the beneficiary will be obliged to pay tax at a rate of 33% (current rate and subject to change). If you are in a long-term relationship, but not married, inheritance tax may still apply making it very expensive for a long-term partner to inherit from your estate. It is important to undertake a degree of tax planning when making your Will and the advice of an expert Wills and Probate Solicitor when preparing your Will will help guide you as you weigh up these considerations.
In Geraldine Barry v Health Service Executive and Mercy University Hospital Limited  IEHC 79, Mr Justice Barr heard how a woman was obliged to seek a loan from her Credit Union in the amount of €76,761 in respect of the inheritance tax that she was obliged to pay on receipt of her inheritance from her partner on his death. Although the deceased had lived with his partner for almost 27 years, they had never married, meaning she did not obtain the legal protections afforded to those that are married.
When making a will, you should consider all of your assets and who you want to benefit from those assets. It is also an option to leave your estate to just one individual, give everyone in your family a share or leave a gift to charity. Making your Will gives you an opportunity to plan for your wishes to be implemented after your death in a tax-efficient manner so that those you intend to benefit, do benefit. Particularly if you have a complex marital history or personal circumstances the benefits of making a Will for your loved ones cannot be overstated. At Carmody Moran Solicitors our Probate Solicitors have dealt with many non-marital families as they administer the Estate of a loved one, this can bring with it certain complexities that could be simplified by the making of a Will.
When does it apply?
Inheritance tax will apply to most gifts or inheritance, including cash gifts, real property, jewellery, shares and stock, cars etc. the list is endless. Of course, there are some exceptions which is why you should obtain full and adequate legal advice on inheriting property.
You may decide to leave something to a charity. This could be anything from property, money, paintings etc.
There are some exceptions to inheritance tax. As mentioned, if you are a beneficiary of your spouse, you will not be obliged to pay any inheritance tax. If you own joint property and wish for your share to be given to the other joint owner, they will not have to pay inheritance tax.
There are some other exceptions but will depend on the individual facts. Every estate will differ, so it is vital that you seek legal advice in order to consider your options.
How long do I have to pay?
This will depend on when the testator dies, if the will is considered valid, if there are any challenges to the will and how much the gift is worth. Each situation is different so make sure you get advice from a reputable source. You should note that penalties may apply if you do not file with revenue on time in relation to any inheritance that may be subject to tax.
For any further questions feel free to contact out Wills and Probate Solicitors in Dublin on 01-8272888 or using the quick enquiry form here.
How much are Wills and what are Probate legal fees?
Wills Fees: Average Will fees or prices are about €150 – €200 plus VAT @ 23% to get the paperwork done to a high level of professionalism. These are very important documents and need to be done correctly.
Probate Fees: These are assessed on a case by case basis, depending on the complexity of the matter and of the size of the estate. We are always happy to meet with you for an initial FREE consultation to assess the amount of work involved and how much it will cost to get it done right. We are better placed to give you an accurate fixed price having met with you and reviewed the situation after which we can furnish you with some initial advice and a written fees estimate for consideration.
Should I think about making a new Will to replace the one I wrote years ago?
Just because you have made a will in the past, does not mean you cannot make another one and amend the terms as you wish. You can change your will at any time, and as often as you like. Remember, a will is about your wishes and you are entitled to change your mind.
It is especially important to update your will if your circumstances have changed. A change in circumstances could be anything from the sale of property, if you get married, have a child, the death of a family member etc. If you update your will after a change in circumstances, it is less likely to be challenged before the Courts.
Good intentions can still lead to a challenge of a will. High Court Judge, Ms. Justice Nuala Butler, discussed this on the 26th of February 2021 when she stated that
“In normal course, where a testator makes a gift in his will of a specific item of property which no longer exists or which he no longer owns at the date of his death, the gift will fail and is said to be adeemed. To determine whether a gift has been adeemed, the court must construe the terms of the will to ascertain exactly what the testator intended to leave. In particular, a court must look to the extent to which the phrasing of the gift by the testator can be taken to have contemplated a change in the form of the property the subject of the gift. Obviously, a gift that is phrased generally will be far less likely to be held to have been adeemed than one which is phrased specifically.”
This case related to a gift of shares left in a will. The shares in question no longer existed as described in the will meaning the gift was invalid. The change in the name and type of gift specified at the time when the will was made, ultimately meant the provision in the will was invalid.
A testator needs to be mindful of any change, big or small, which may alter his or her will contrary to what was intended. If you are in doubt, seek legal advice. You may not need to change the terms of your will, but it is always better to be safe than sorry. A small error could end up costing your estate thousands in Court Costs.
For further information feel free to get in contact with our Probate Solicitors in Dublin City Centre on 01-8272888 or through the quick enquiry form here.
I want to contest the Will – What do I do?
While a person is free to deal with their affairs the law does provide certain restrictions. These particularly apply to children and spouses. Certain rules of law can override a Will.
Wills have very strict execution requirements and the validity of the Will can be challenged.
Will challenges are complex and intricate areas of law. Our firm has dealt with a wide array of legal challenges in large Estates running to several million euro and in everyday estates. We can advise you on your legal rights, assist and mediate in a dispute, and our expert solicitors can litigate on your behalf in the Courts if necessary. For further information please telephone our Probate Solicitors in Dublin City Centre or email us for an appointment and we will be happy to advise you on your personal situation.
Can I stop my grown-up adult children contesting my Will?
There are a number of reasons why a will could be contested. For example, if a will does not comply with Irish law, issues with the construction of the will or the terminology used, if a witness did not sign correctly or the spouse does not inherit a legal right share of one third.
Legal right share
A spouse is entitled to a “legal right share” even if this is not specified by a testator. Legal right share is a right of a spouse even when there is no will made. The percentage of this share will depend on the testator’s family circumstances (children or no children). If a testator has not made allowances in their will for their spouse, an application can be made before the Court to contest the terms of the will.
If a will does not allow for certain provisions for your children, an application can be made pursuant to Section 117 of the Succession Act to the Court, seeking “proper provision”. The success of such an application will depend on the individual circumstances of the testator’s estate which is why it is important to take legal advice. If you include some but not all of your children in your will, it may give rise to a challenge. If you do not make extra provision for a child with particular needs, a challenge may be made before the Court.
If your spouse has died or you are no longer married and you wish to include your new partner in a will, you can of course do so. However, it is still open to challenge by your children on the basis that you failed to make “proper provision” for them. Be mindful that your new partner will not have the same legal protection that a spouse would have.
If you are simply separated or divorced from your spouse and wish to include your partner in your will, you will need to consider the terms of your separation agreement or divorce terms, if relevant, and review these with your Solicitor when making your will. Family law can crossover with Probate law and early expert legal advice from an experienced Probate Solicitor, can greatly help.
What is proper provision for a child and Section 117 claim
Proper provision essentially means fairness. When a court considers a will, it will consider whether the terms are fair for all of the parties involved, given the specific circumstances of the estate and the beneficiaries involved.
It is open to any of your children to make an application on the basis that there was no proper provision made for them. Any child of a testator can make an application to Court in accordance with Section 117 (of the Succession Act 1965) seeking proper provision for them to be made under the will. The Court will then consider the number of children, their financial means and individual circumstances, their age and if the testator has already made provision for that child before their death. An application of this nature must be issued within six months of the date of the Grant of Probate.
The Case of Re ABC deceased; XC & Others v RT & Others (2003), the Court set out what a Judge must consider when looking at a claim being brought by a child when considering whether there was a failure of moral duty and assessing whether proper provision has been made for a child. The exact text from the Judgment is:
- The social policy underlying section 117 is primarily directed to protecting those Children who are still of an age and situation in life where they might reasonably expect support from their parents, against the failure of parents who are unmindful of their duties in that area.
- What has to be determined is whether the testator at the time of his death, owed any moral obligation to the children, and if so, whether he has failed in that obligation.
- There is a high onus of proof placed on the applicant for relief under section 117, which requires the establishment of a positive failure in moral duty.
- Before a court can interfere, there must be clear circumstances and a positive failure in moral duty.
- The duty created by section 117 is not absolute.
- The relationship of parent and child does not itself and without regard to other circumstances, create a moral duty to leave anything by will to the child.
- Section 117 does not create an obligation to leave something to each child.
- The provision of an expensive education to a child may discharge the moral duty as may other gifts or settlements made during the lifetime of the testator.
- Financing a good education so as to give a child the best start in life possible and providing money, which, if properly managed, should afford a degree of financial security for the rest of one’s life, does amount to making proper provision.
- The duty under section 117 is not to make adequate provision but to provide proper provision in accordance with the testator’s means.
- A just parent may take into account not just his moral obligations to his children and to his wife, but all his moral obligations e.g., to aged and infirm parents.
- In dealing with section 117 applications, the position of an applicant child is not to be taken in isolation. The court’s duty is to consider the entirety of the testator’s affairs and to decide upon the application in the overall context. In other words, while the moral claim of a child may require a testator to make a particular provision for him, the moral claims of others may require such provision to be reduced or omitted altogether.
- Special circumstances giving rise to a moral duty may arise if a child is induced to believe that by, for example working on a farm he will ultimately become the owner of it, thereby causing him to shape his upbringing, training and life accordingly.
- Special needs would also include physical or mental disability.
- Another example of special circumstances might be a child who had a long illness or an exceptional talent which it would be morally wrong to foster.
- Although the court has very wide powers both as to when to make provision for an applicant child and as to the nature of such provision, such powers must not be construed as giving the court a power to make a new will for the testator.
- The test to be applied is not which of the alternative courses open to the testator the court itself would have adopted if confronted with the same situation but, rather, whether the decision of the testator to adopt for the course he did, of itself and without more, constituted a breach of moral duty to the plaintiff.
- The court must disregard the fact that parents must be presumed to know their children better that anyone else.”
Each case is judged on its own merits and the circumstances of all the children and the parents will be looked at by a Court. Get in touch with our Wills and Probate Solicitors in Dublin on 01-8272888 or use the quick enquiry form here.
My child will need ongoing care for the rest of her life, what provision can I make for her when making my Will?
If you have a child that has particular needs that will remain going into the future, a ‘Trust’ may be an option to consider. A trust is a legal mechanism whereby a third party, known as the trustee, is assigned to take control of and be responsible for assets, which will benefit another individual or individuals. The person or persons who benefit will be known as the beneficiaries.
A trust does not need to be included in a will and can be formed as a stand-alone document if you wish and can operate during your own lifetime. Assets held in the trust can be released at a specified time, e.g., on the beneficiary turning 18, used for a specific purpose e.g., third level education or for care of a child for their lifetime.
Trusts are particularly beneficial if you have a child or spouse with special needs or a disability that may require extra care or financial support.
The terms of a trust will be very specific to you and your circumstances. You will need to specify who the trustee will be, when the trust will come to an end or if the trust should remain for a someone’s lifetime.
It is important to get the right advice in order to ensure that the trust is created in accordance with the law and will in fact provide for the beneficiary as intended. Get in touch with our Probate Solicitors here for advice.
Section 84 Capital Acquisitions Tax Consolidation Act 2003
The Capital Acquisitions Tax Consolidation Act 2003 sets out a legal obligation to pay Capital Acquisitions Tax when inheriting gifts or property from a family member or friend. This tax is determined by self-assessment. The date of inheritance will generally be the date of death. There are exceptions to the Act and not all property will be subject to tax e.g., if you own property as a joint tenant with the testator.
Section 84 of the Act states any gift or inheritance taken for the purpose of providing medical care and related expenses for a person who is “incapacitated by reason of physical or mental infirmity” does not qualify for the usual Capital Acquisitions Tax. The gift must be used solely for the use of medical expenses, if the gift is used for any other purpose, the exemption will not apply meaning you will be liable to pay tax.
The Revenue Commissioners may require evidence as to the testator’s intention at the time of making the will, and that the gift was solely for the purpose of providing medical care to a personal considered as permanently incapacitated.
In H v H  IEHC 163, Mr. Justice Sheehan considered a Section 117 claim by a child with specific care needs and stated that “the matter that I attach most significance to on the defence side is the illness the defendant’s daughter suffers from and her ongoing extensive requirements relating to permanent care. In considering the plaintiff’s application from the point of view of a prudent and just parent, and bearing in mind the matters already referred to, I am conscious that the plaintiff has grown up largely without the support and presence of her father. This fact weighs more heavily with me than the fact that the plaintiff has grown up in a modest environment. In the circumstances of this case, I hold that proper provision for the plaintiff requires that she be enabled to complete her second and third level education in relative comfort and be enabled to purchase a two-bedroom apartment not far from where she presently lives with her mother”.
In L. v. L.  1 I.R. 288, the court found that “a parent, in acting prudently and justly, must weigh up carefully all his moral obligations. In doing so, he may be required to make greater provision for one of his children than for others. For example, one child may have a long illness for which provision must be made; or one child may have an exceptional talent which it would be morally wrong not to foster.”
Carmody Moran’s expert probate solicitors have worked with families with vulnerable individuals to protect in terms of legal life planning. These can range from protecting someone who is vulnerable to persuasion, has mental health issues, or physical health issues, that mean the individual will require care and protection into the future. Get in touch with us today on 01-8272888 or through the quick enquiry form here.
I am remarried and thinking of leaving the shares in our family business, a company, to my new husband. My children do not like my new husband, can I force them to accept him as a shareholder in the family business?
Articles of Association and Shareholders’ agreements are very important documents when dealing with a company. Articles of Association will specify the companies purpose, day to day operations, the management of finances, and how and when a director is to be appointed. This is a legal document required by law.
A shareholders agreement is a contract made between the shareholders and will set up specific details on management and how to manage disputes between the shareholders. Most shareholder agreements will set out how shares are to be sold or passed on in the event of a death. Generally, shareholder agreements will impose certain restrictions when transferring shares and will require current shareholders the first opportunity to purchase shares.
A shareholder’s agreement can include provisions governing the transfer of shares to either impose restrictions or sets out the type of transfers that would be allowed.
The reasoning behind such provisions is to prevent outsiders from purchasing shares without the other shareholders being aware. Most agreements will set out an obligation that shareholders will not sell their shares to third parties without giving the option to the existing shareholders first.
Not all but some agreements will also provide for situations arising out of death or divorce. These provisions are specific to the individual agreement but may prevent shares being transferred to a shareholder’s spouse or other family member and may specify that shares in these situations must be purchased by an existing shareholder. This is why it is very important to view any existing shareholder agreement and/or articles of association and seek proper legal advice.
It may not be possible to force a company to accept your spouse as a shareholder. Share transfers are governed by the company’s articles of association and shareholders’ agreement and may be blocked, despite a gift being made in your will that says otherwise.
In the case of family run businesses, there may be several restrictions contained within the shareholders agreement to ensure that the business will remain within the family. If there is conflict between shareholders, it may cause major disruption to the every-day decision making of the business. Some shareholder disputes end up before the Court and could result in significant legal costs in order to resolve matters. Even if the shareholders agreement allows the transfer of shares to a third party, conflict and disagreements may arise. If your spouse and children do not get along, it may result in court proceedings being taken by one of the parties.
In Annemarie O’Connor v Atlantis Seafood Wexford Limited and John Kenny and Mark O’Connor  IEHC 589, the Plaintiff was obliged to take proceedings against her brother-in-law and son, as they were behaving in a manner oppressive to her as a shareholder, or member, of the company. Applications of these nature coming before a Judge of the High Court, meaning the legal costs can run in to tens of thousands.
Company law can be a very complex area of law. It is always advised to speak to probate solicitors about your company before making a will.
If you need help get in touch with our Probate Solicitors in Dublin on 01-8272888 or by using the quick enquiry form here.
Why should I make a Will, if my wife and children will inherit everything anyway under intestacy rules?
If you do not have a will when you die, the rules of intestacy will determine the division of your Estate. If you are married, your spouse and children will inherit your estate. If the property is not jointly owned, then your spouse will only receive a legal right share of one third of your estate. The remainder will be split between your children. This can get very complicated, particularly when dealing with the family home, a business, or farmland etc. If there are no children, the entirety of your estate will automatically go to your spouse.
If you want your spouse to inherit the family home, you will need to specify this in a will. If you want to leave a gift to a family member or friend, this will also need to be specified in your will. Your estate will be divided by the rules of intestacy unless stated otherwise.
The Succession Act 1965 sets out the order in which your family will inherit from your estate. This may not reflect how you wish to distribute your estate. You may wish to leave gifts to friends or neighbours, leave a gift to charity, set up a trust to look after a vulnerable spouse or child etc.
Essentially your children will have a bigger share of your estate, than your spouse. This may not suit every family dynamic, so it is something to consider. You may tell your family that you wish to leave a friend something specific like your stamp collection or golf clubs, but unless you specifically state this in your will this is not legally binding under the rules of intestacy.
When you speak to a solicitor and receive legal advice, it can focus your mind on specific assets which you wish to gift to others outside your family.
It should be noted that if you and your spouse separate before your death, but you never divorce, the law still considers you married. This means that your spouse will still be entitled to the legal right share of one third, even if your will specifies a lessor share. This may give rise to a legal challenge if your spouse needs additional care or financial support after your death.
In the Matter of The Estate of Peter Clohessy  IEHC 797, Mr Justice Binchy decided that the 95-year spouse of the deceased was entitled to her legal right share of one third, despite the testator gifting €1000 to his spouse. The legal right share was her legal entitlement despite the will expressly stating otherwise.
Your Expert Estate Planning Legal Team in Dublin City Centre
Our experienced probate solicitors in Dublin are on hand to advise and handle all natures of Enduring Power of Attorney in Ireland.
The two senior partners of Carmody Moran, Probate Solicitors in Dublin, have a combined total of in excess of thirty years of professional legal experience. Together with their associates, they aim to make the Court process as straightforward and navigable as possible while being on hand to alleviate their client’s concerns and worries about going through the Court process.
Anthony Carmody is one of the founding Partners of Carmody Moran Solicitors.
He has significant experience in personal injury cases and general litigation having handled literally thousands of cases on behalf of clients based in Ireland and abroad.
Niamh Moran is one of the founding partners of Carmody Moran Solicitors and is a solicitor with wide-ranging experience across all areas of general practice.
Niamh manages the family law, conveyancing in Dublin, and probate divisions of the practice. Niamh’s practice of law is extremely varied and she is regularly sought out for her expertise by clients and colleagues alike.
*While we have made every effort to provide accurate information, the law is always changing and it affects each person differently. This information is not a substitute for specific advice about you personally and it is not intended as legal advice. We will not be liable to you if you rely on this information. In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement. This statement is made in compliance with Reg.8 of SI 518 of 2002.
You should note that no solicitor/client relationship or duty of care or liability of any nature shall exist or be deemed to exist between Carmody Moran Solicitors and you until you have received a written letter of engagement from us in which we confirm our appointment as your Solicitors.
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