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:
- the spouse or civil partner
- 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.
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.
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.
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.