Wills and Probate

Wills and Probate
While most of us may not like to contemplate it, the reality is that we are all going to die at some stage. It is vitally important to address the area of estate planning so that a person’s estate is distributed in accordance with his or her wishes and in a tax efficient manner. There is a common expression that “where there’s a will there’s a law suit”. Frequently, a badly drafted will, or inefficient estate planning can lead to disputes after a person’s death and it is important to ensure that your loved ones are provided for and protected after your die, and that your will is unlikely to result in family disputes.

There are different types of Grant, the most usual being as follows:

  • Grant of Probate – Where the deceased died having left a will or “testate”
  • Grant of Letters of Administration Intestate: Where the deceased died without having made a will, or “intestate”.

The Grant entitles the personal representative to collect the estate assets, discharge any liabilities and distribute the estate to the beneficiaries.

At O’Donnell McKenna Solicitors, we have many years experience in dealing with estates and the various complications that can arise.

If you would like us to help you, or if you would simply like to have a chat to discuss your options, don’t hesitate to contact us.

Grants of Probate

Grants of Probate basically means having the Probate Office, or the appropriate District Probate Registry, certify that the Will is valid and that all legal, financial and tax matters are in order so that the Executor or Administrator can be allowed to get on with the job of distributing the estate.

“Proving” the Will is the process by which the Probate Office accepts that the Will is valid and may be put into effect. The Probate Office may carry out some enquiries, e.g. it may ask to see the witnesses to the Will but this does not always happen.

Appointing an Administrator

If you don’t make a Will, an Administrator must be appointed. An Administrator is also appointed where an Executor is not named in the Will, dies before the testator or is unwilling or unable to act.

The next of kin may apply for a grant of administration. Priority is given in the following order:

Grant of Letters of Administration with Will Annexed: Where the deceased died testate but where the named personal representatives in the will are deceased, unwilling or unable to extract the grant.Grant of Letters of Administration de bonis non: This is a second or subsequent grant dealing with matters not dealt with in the original Grant.

  • the spouse or civil partner
  • child
  • parent
  • brother or sister
  • more distant relative.

If there is doubt about who is entitled to be the Administrator, the issue will be decided by the Probate Registrar. Usually, an Administrator is required to give an administration bond to the Probate Office – this is a sort of guarantee that you will carry out your duties properly.

Caveats

Any person may oppose a Grant of Probate or a Letter of Administration. If you have an objection, you may lodge a caveat (objection) in the appropriate District Probate Registry or at the Probate Office.

Transferring land

You transfer land by way of an “assent” to the beneficiary under the Will or under the Succession Act. An assent must be in writing. If you are the beneficiary, it is not absolutely necessary for you to vest the property in yourself by way of an assent (as technically the property already vests in you). However, it is recommended practice that you do so in order to facilitate any future selling of that land.

Personal application

To make a personal application you must attend in person. The Probate Office has discretion to refuse to allow a personal applicant to be attended by an adviser.

The Probate Office may also refuse to allow an applicant to personally continue an application if it had been initiated by a solicitor. Where an application is made in connection with a case that has already been before the courts, that application must be made by a solicitor unless a special direction is received from the Probate Office. The Probate Office will help an Executor/Administrator who is acting personally.

We have created a checklist for a personal application should you wish to pursue this option.

Duties of Executor/Administrator

Generally, you are obliged to distribute the assets as soon as possible after the death (within a year if possible – you may be sued by the beneficiaries if you do not distribute the estate within a year). This may not be possible if there are legal issues to be decided.

We have created a list of common duties and powers of Executor/Administrator which will help you to protect the assets of the deceased. This list also gives you information on

Capital Gains Tax, beneficiaries living abroad, social welfare recipients and if the deceased dies in debt.

If you would like us to help you, or if you would simply like to have a chat to discuss your options about any of the above, please don’t hesitate to contact us.

Intestacy

If a person dies without having made a Will, or if the Will is invalid for whatever reason, that person is said to have died ‘intestate’. If there is a valid Will, but part of it is invalid then that part of the Will is dealt with as if there was an intestacy. If that happens, your money and property is distributed in accordance with the rules set out in the Succession Act, 1965.

The rules for division of property on intestacy are as follows:

  • If the deceased is survived by:
    • spouse/civil partner but no children
      • the spouse/civil partner gets entire estate
    • spouse/civil partner and children
      • the spouse/civil partner gets two-thirds, one-third is divided equally between children (if a child has already died his/her children take a share)
    • parents, no spouse/civil partner or children
      • estate is divided equally, or entirely to one parent if only one survives
    • children, no spouse/civil partner
      • the estate is divided equally between children (as above)
    • brothers and sisters only
      • the estate is shared equally, or if deceased, the share to go to the children of a deceased brother or sister
    • nieces and nephews only
      • the estate is divided equally between those surviving
    • other relatives
      • estate is divided equally between nearest equal relationship
    • no relatives
      • estate goes to the state.

If you would like us to help you, or you would simply like to have a chat to discuss your options, please don’t hesitate to contact us.

Probate Disputes

What do I do if someone disputes the Will/Estate?

Disputes can arise in several different ways. Disappointed family members, civil partners, cohabitees, heirs, beneficiaries or others may make claims for what they consider to be their entitlements, or perhaps challenge the validity of the Will.

If you receive notification or a claim, have reason to expect a claim, or simply want to know where you stand, you should say nothing and contact us and we will respond quickly and we will call back at a time suitable to you, without obligation.

I want to contest the Will – What do I do?

A person making a Will does not have carte blanche to leave his or her estate any way he or she wants. The law imposes a number of restrictions, especially as to the treatment of spouses, civil partners, cohabitees and children and these can override a Will.

Very strict format and signing requirements apply for Wills to be valid.

Wills can be set aside if made under unsatisfactory circumstances such as undue influence, lack of knowledge and understanding or mental incapacity. They can also be set aside where someone shows that he or she was made a promise, relied on that promise and the promise is unfulfilled.

Claims can also be made against negligent and/or fraudulent Executors/Administrators.

When it comes to contesting Wills, the law is complex and strict time limits can apply.

If you are contemplating a claim, or simply want to know where you stand, you should say nothing and consult us immediately.

Is there anything else I should consider?

We recognise that litigation can be costly and therefore advise clients as to alternative, yet effective, methods of achieving their goal.

If you would like us to help you, or if you would simply like to have a chat to discuss your options, don’t hesitate to contact us.

Wills

Why choose O’Donnell McKenna Solicitors?

At O’Donnell McKenna Solicitors we always strive to provide a professional service and we believe that clients are entitled to straightforward, honest advice from a reputable solicitors’ firm.

What is a Will?

A Will is a legal document that clearly sets out your wishes for the distribution of your assets after you die.

Why make a Will?

Making a Will allows you to provide for the passing of your property within a clear-cut legal document to ensure that your assets are bequeathed and transferred in accordance with your wishes after your death.

What makes a valid Will?

  • the Will must be in writing, preferably typewritten
  • the testator (or testatrix if female) must clearly identify himself as the maker of the Will
  • the testator may demonstrate that he has the capacity to dispose of his property and does so freely and willingly
  • the testator should declare that he revokes all previous Wills and codicils. Otherwise, a subsequent Will revokes earlier Wills and codicils only to the extent to which they are inconsistent.
  • the testator must sign and date the Will in the presence of two disinterested witnesses – ie. two people who will not inherit from the Will.

What should a Will contain?

A Will should contain at least the following elements:

  • the testator’s name and address
  • a revocation clause (revoking previous Wills)
  • appointment of executors
  • a list of all legacies (gifts of money or goods)
  • a list of devises (gifts of real property)
  • a residuary clause, disposing of the remainder of the estate and dealing with all eventualities
  • the date
  • the testator’s signature
  • an attestation clause
  • signature of the two witnesses

Are there any restrictions?

In general, you may not completely disinherit a spouse/civil partner and, if you do, your spouse/civil partner may claim his/her legal right share. You are not obliged to leave any assets to your children but if you do not, they may be able to make a claim on the basis that you have not fulfilled your obligations towards them. Anyone considering challenging a Will on these grounds should get legal advice before applying to the court. Children born within or outside marriage have the same rights. Aside from that, you are at liberty to dispose of your estate in whatever way you like.

What if I am separated, divorced, or an unmarried partner?

Being separated or divorced from your spouse does not mean that your spouse automatically loses the legal right to a share of your estate; however, the rights may be cancelled under the terms of a separation agreement or judicial separation, or can be cancelled by court order when there is a divorce.

What does intestate mean?

If a person dies without having made a Will, or if the Will is invalid for whatever reason, that person is said to have died ‘intestate’. If there is a valid Will, but part of it is invalid then that part of the Will is dealt with as if there was an intestacy. If that happens, your money and property is distributed in accordance with the rules set out in the Succession Act, 1965.

If you would like us to help you, or you would simply like to have a chat to discuss your options, don’t hesitate to contact us.