Wills and Probate

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Frequently Asked Questions

Should I make a will?

There are many benefits to making a will, 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 application to 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 personal representative.

How do I go about making a Will?

At Carmody Moran Solicitors our experienced team can help you in making the right decisions.   We can furnish you with expert legal advice to help you draft your will while bearing in mind the legal provisions and tax implications of your actions.  Please telephone us on 01 827 2888 for further information and we will be happy to discuss what is involved in making your will and guide you through the process.

If you have already made your Will you should remember to up date it regularly so that it keeps pace with any legal and tax changes and of course your own personal circumstances.   For further legal advice in this regard please feel free to contact us and we will be happy to be of assistance.

Death of a loved one, where to start?

This is obviously an upsetting and distressing time.   Making a Will 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.
We 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.

 

A first meeting with my Solicitor regarding the probate – what should I bring?

Some useful information to bring with you to a first appointment with your solicitor 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.

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.

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

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.

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 advices
  • 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.

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 every day 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 us or email us for an appointment and we will be happy to advise you on your personal situation.

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 we can assist you through the Inquest process and advise you on any further legal action as may be appropriate.

 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 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.

Inquest – a public enquiry held in connection with the circumstances surrounding a death where that death has been because of unnatural causes.

*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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