We, at D’Arcy & Co., Solicitors, Kildare, use our experience to provide clients with helpful, sensitive and cost effective assistance at a time that is often difficult for clients.
Probate cases are dealt with by Paul D’Arcy, a solicitor with over twenty years of Probate experience. He, also, holds the STEP / Law Society Diploma in Probate Practice.
Paul is a full member of STEP (The Society of Trust and Estate Practitioners – the professional body for trust and estate practitioners worldwide) and Catherine O’Reilly, Legal Executive is an affiliate member.
Common issues in brief
Adopted Children and Inheritance
An adopted child has equal rights with other children of the adoptive parents regarding challenging a will. They also have equal status in cases where there is no will. An adopted child has no such right in relation to their biological parents.
From a tax point of view, since 2001, adopted children are in the same threshold for inheritance tax as all children in relation to adoptive parents and also biological parents. Please visit our Taxation within Estates page for a brief tax overview.
In helping clients to Administer Estates we will need the following information:-
The Deceased’s personal details:-
- Name and Address
- Date of Death
- Date of Birth
- Age at Death
- Place of Death
- PPS Number
- Marital status at time of death and marital history
- Tax Domicile and Residence history
Details of Surviving relatives
Details regarding the Will (if any)
- Did the Deceased leave a Will
- Location of Will
- Will all Executors act
- Date of the Will
- Is there any issue with capacity of testator
- Is their proper execution of the will
A person administering an estate under a will is an Executor. Otherwise the person administering is an Administrator.
The following details regarding each Executor or Administrator
- Name and Address
- Phone Number
- Relationship to the Deceased
- PPS Number
These may include:-
- House (including Valuer details)
- Household goods
- Business or investment property
- Bank accounts
- Credit union accounts (may be subject to nomination)
- Post Office
- Prize Bonds
- Pension scheme benefits
- Life assurance (may be subject to nomination)
Details will be needed of which assets (if any) were held in Joint names.
Details of Foreign Assets
Debts of the Estate
These may include:-
- Funeral Director
- Other Funeral Expenses
- Pre-death bills
- Pension overpayment
- Nursing home support scheme
The following details regarding each Beneficiary
- Name and address
- PPS Number
- Relationship to the Deceased.
- Legacy/Share of Estate
- Details of previous gifts/inheritances
Consideration will need to be given of Tax (if any) payable
If you are involved in the estate of a deceased person you should consider the following initial factors :-
Is there a Will?
This is important because if there is a Will, it will set out certain important rules regarding who is to deal with the estate and who is to receive from the estate. Reasonable efforts should be made to find out if there is a Will. We can assist with these enquiries.
Is a Grant of Administration needed?
The answer to this question will depend on how large the cash assets are and where they are located. Also, if the deceased person held land or buildings, a grant will need to be taken out.
The insurer should be notified and the insurance will often need to be changed as a result of a death.
Is there property to be sold or transferred?
If so, we can assist with co-ordination of this with the taking out of the grant.
Payment of Funeral Expenses
This can involve consulting with us about how quickly cash assets can be accessed for payment of the funeral director.
Was a Grant already taken out in the case of a person who died some years ago?
If a person died some years ago it can sometimes be the case that a grant was already taken out. We can help with finding out whether a grant was taken out and advising on how that might affect things.
We can also advise on issues that will arise later on in dealing with the estate including finding out the assets and liabilities and considering tax issues.
Please see below some information that may be helpful to those involved in the Administration of an Estate
The duties of Personal Representatives of an Estate
The Personal Representative of an Estate can be an Executor or an Administrator. An Executor is a Personal Representative appointed in a will of the deceased. An Administrator is a person acting in the administration of the estate where there is no will or for some other reason i.e. other than someone appointed in a will. The role of Executors and Administrators are very similar though not identical. A person appointed as Executor can renounce executorship if they do so before acting in any way in the Estate.
- Valuation and Protection of Assets
A Personal Representative has a duty to ascertain the precise value and extent of all of the deceased’s assets. The Personal Representative must ensure that the assets of the estate are properly protected. It follows that there is a duty to insure with a reputable insurance company that all assets normally requiring insurance, such as a house or land or other valuable items e.g. jewellery, house contents, car etc. are insured.
- Ascertain all liabilities and beneficiaries
A Personal Representative must ascertain all outstanding debts, taxes etc. and check that there are no claims outstanding against the estate. All of the beneficiaries must also be ascertained. A Personal Representative will often need to make enquiries of beneficiaries in relation to prior gifts/inheritances received by them. It is essential to obtain details of the beneficiaries PPS numbers.
- The Inland Revenue Affidavit
When all enquiries have been made (and these can be numerous and complex) a schedule or list of all the assets and liabilities of the deceased must be prepared. This is an official document known as an Inland Revenue Affidavit and has to be sworn by the Personal Representative along with several other relevant documents and declarations.
- Extract the relevant Grant and collect in the assets
When all the relevant papers have been lodged in the relevant tax office and in the probate office, the Grant of Probate/Administration issues. The Personal Representative is then in a position to collect in all the deceased’s assets. It is at this stage that assets not being specifically given to named beneficiaries will generally be sold.
- Pay the expenses and debts of the estate and obtain tax clearances
The Personal Representative is obliged to pay the funeral expenses and all other outstanding debts of the deceased.
The Personal Representative is then required to distribute the assets to those entitled while dealing appropriately with taxes. These taxes include all taxes due by the deceased prior to his/her death, all taxes arising out of the administration of the estate itself and all inheritance taxes or Capital Gains Taxes arising out of the distribution of assets. Ensure that all relevant clearance certificates are obtained prior to distribution.
- Prepare Administration Accounts
Finally, the Personal Representative must furnish an administration account wherein they account for all monies received and all monies distributed during the administration period.
- Duty for life
The duties of the personal representative are for life. For example, if an asset is discovered after distribution is complete; it is the duty of the personal representative to dispose of that asset as per the Will/Intestacy. An amended schedule of assets may be required.
- Relevant points for Personal Representatives
The following points are of relevance to Personal Representatives and are mentioned here as they are the most frequently raised queries asked by a personal representative :-
- The general rule is that a Personal Representative sufficiently discharges their duty where they take all precautions which an ordinary prudent person would take in managing similar affairs of his own.
- A Personal Representative may not delegate his authority but he may need to employ other persons, experts in their own fields, to help him. They will not be liable for their mistakes or negligence provided they are employed only to do acts within the scope of their profession or expertise.
- The office of Personal Representative is gratuitous i.e. the Personal Representative is not entitled to receive fees or to profit from carrying out his duty. However, neither should they incur a loss, so all expenses properly incurred during the administration period are recoverable by them.
The following are some questions raised by clients with general replies only. The correct replies in any particular case will depend on the circumstances of that case.
When should property in an estate be put into the names of the beneficiaries in the Land Registry?
Where a sale takes place as part of the administration of an estate, the personal representatives of the deceased will sell the property. However, in other cases the personal representatives should assent the property into the names of the beneficiaries.
What Probate changes took place recently and how will they affect clients
As of 4 September the paper Revenue Affidavit (CA24) has been replaced with a digital form (SA2). The rest of the Probate documentation is not affected.
A greater amount of information will need to be gathered and given to Revenue. It will also mean that Revenue will know more about those getting money or assets and will have the details earlier. They will, also, be able to cross check information more easily than before.