By Karen Walsh
A person either dies with a will (testate) or without a will or a valid will (intestate).
The estate of a person who dies testate will be distributed according to their wishes as set down in their will, and the estate of a person who dies intestate will be distributed according to the rules of intestacy.
When a will is prepared by a solicitor for a client, the solicitor will always recommend that the client tell someone that they have made a will, and with whom, and will offer them a copy of the will to take with them if they wish.
The original will is usually kept by the solicitor who drafted it.
The person making the will must appoint an executor or executors to their will.
This is a person who will administer the estate of the deceased.
The will must also be witnessed by two independent witnesses who are not beneficiaries of the will. Sometimes, the executors will have been advised by the deceased of where their will is located.
When a person dies having taken a copy of the will home and having told someone where it is, matters are much simpler.
If someone has made a will, it is likely that the executors of the will may know where the will is kept or which solicitor drew it up for the deceased.
If a person has not taken a copy, and has not told a family member that they have made a will, the family will then generally contact the deceased’s solicitor, if they know who that is.
If the solicitor of the deceased is unknown, the family should then contact solicitors in the area who can check with other solicitors whether they hold a will.
An advertisement can be published in the Law Society of Ireland’s magazine, the Gazette, making enquiries as to whether the deceased left a will. If no will is found, and the family are satisfied that no will exists, the estate of the deceased will be distributed according to the rules of intestacy.
How long does an executor have to administer an estate?
On distributing the estate, there is a duty on legal personal representatives to distribute the estate as soon as is reasonably practicable.
The process may however be a lengthy one.
Where a person dies testate, the executor or executrix takes out a grant of probate in order to administer the estate.
When a person dies intestate, the legal personal representatives will administer the estate.
Probate is the procedure that gives the appointed executor the authority to carry out the testator’s wishes per the will.
To administer the estate, the executor must apply to the Probate Office for a grant of probate.
The executor must file the original will and full details of the assets in the deceased’s estate with the Probate Office.
The Grant of Probate then issues.
The executor can then administer the estate.
This procedure can take several months, or sometimes years.
Under section 62 of the Succession Act 1965, the estate of a deceased person must be distributed as soon as is reasonably practicable after the date of death. Beneficiaries under a will cannot, however, demand that the estate be distributed until one year has passed from the date of death.
Where the person who dies has several bank accounts, life insurance policies and owns a number of properties, it will take considerable time to gather the information and valuations required to complete the forms to be filed with the Probate Office.
It may also take time to collect the necessary information from beneficiaries, which includes PPS numbers and details of any prior gifts and inheritances given to them.
In some cases it can take considerable time to locate all the beneficiaries entitled.
Once the relevant grant is issued, the executor or administrator distributes the estate.
This may involve selling shares and property, or vesting title in beneficiaries’ names, both of which have the potential to be very lengthy processes. The executor or administrator is also obliged to give notice of three months of their intention to distribute th estate to the Department of Social Protection, so that any overpayments of social welfare, such as pensions, are paid back.
If you are a beneficiary under a will, and an executor of the will has not done anything about administering the will, it is advisable that you consult your own solicitor.
Karen Walsh, from a farming background, is a solicitor practicing in Walsh & Partners, Solicitors, 17, South Mall, Cork (021-4270200), and author of ‘Farming and the Law’. Walsh & Partners also specialises in personal injury claims, conveyancing, probate and family law.