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WILLS and PROBATE

What is a Will?

A will is a legal document that sets forth your wishes regarding the distribution of your property and the care of any minor children. If you die without a will, those wishes may not be carried out as you wish.

If someone dies with a valid Will, that is known as being Testate.

If someone dies without a valid Will, that is known as being Intestate. 

There are different rules regarding the division of assets for both.

 

Succession Act, 1965

In the event that you do not have a will when you died, the Succession Act will dictate how your Estate is divided out.

 

Children’s Rights and Actions a Child of the Deceased can take against the Estate

The surviving spouse’s rights cannot be interfered with by the Court in making any award in favour of a child of the Deceased. 

 

There are three types of actions that a child of the Deceased can take against the Estate.

 

Proprietary Estoppel

This is where the child performed some form of action expecting a reward that never comes and this was done to the child’s detriment.

This could be farming the land of the deceased without reward, or staying home to take care of the deceased instead of going to school or work. 

In a  proprietary estoppel case it is necessary to prove that the child acted to his detriment and that the child was lead to believe he would be awarded with a portion of the Deceased’s Estate.

to the deceased’s property and the deceased knew and encouraged this belief.

 

Section 63 of the Succession Act, 1963

This section addresses advancements to children and allows a child to bring a claim against a sibling who has previously received an advancement during the testator’s lifetime so that such an advancement is taken into account in the distribution of the estate on death.

 

Section 117 of the Succession Act, 1965

This section allows for the child of the Deceased to make a claim where the Deceased as failed to make proper provision for the child and that the child needed that support.

 

This is the most common action taken by children of the Deceased and often is taken by children who were born out of wedlock and not acknowledged and looked after during the lifetime of the Deceased.

 

Spousal Rights under the Succession Act, 1965

If you do have a will, the Succession Act provides a number of special protections for spouses such as the following under section:

111.—(1) If the testator leaves a spouse and no children, the spouse shall have a right to one-half of the estate.

(2) If the testator leaves a spouse and children, the spouse shall have a right to one-third of the estate.

 

This is referred to has the ‘Legal Right Share’.

 

Steps to be taken to the distribute the Estate of the Deceased

 

First, let us set out some basic definitions:

Executor

The person named to distribute the Estate of the Deceased.

 

Administrator

An Administrator is the person appointed to act to administer the Estate if no Executor is appointed or the Executor cannot act or does not wish to act.

 

Administering the Estate

In order for their property to be divided according to the Will of the Succession Act, the Executor must apply to the Probate office to take out a Grant in order to administer the Estate.  There a number of different types of Grants depending on the circumstances.

 

Grant of Probate 

This is where a person dies leaving a valid will and appoints an Executor.

 

Grant of Letters of Administration

This is where a person dies without having made a valid will the Grant issues to the person or persons who were their nearest next of kin at the date of death as set out in the Succession Act 1965, determines who is next of kin.

 

Grant of Letters of Administration with Will Annexed

This is where a person dies having made a valid will and a person other than the executor applies, the Grant issues to the persons entitled by law.

 

Grant Of Probate

In order for their property to be divided according to the Will of the Succession Act, the Executor must apply to the Probate office to take out a Grant of Probate in order to administer the Estate.

 

When to Appoint a Solicitor

Taking out a Grant can be complex and difficult.  Once you have the Will or are sure there is no Will, you should obtain a Death Certificate for the Deceased and then the named Executor should make contact with us.

 

Is the Will valid?

Once we have the Will, we will review it to confirm if it is valid or not.

From there we will provide you with a quote for our fees and outlay.  We believe you should always be aware of the costs of our services so you can decide whether or not you wish to instruct us.

 

Ascertaining Liabilities and Assets

The next step is to determine all of the assets and liabilities of the Estate.  Once all of the liabilities are discharged, any left over assets can be distributed to the beneficiaries of the Estate.

 

 

The Revenue Commissioners

Once all the assets and liabilities of the estate have been ascertained a return to the Revenue Commissioners must be made along with the Probate Tax Return which is in the form of a worn Affidavit.

 

The Grant

Now we can apply on your behalf for a Grant and once this is issued, we can begin to administer the Estate.