Probate needed except for small estates and nominations

In this article, Karen Walsh addresses some of the most common questions in relation to administering an estate.

What exactly is ‘Probate’?

Probate is the legal term for the process of proving a will.

Taking out a grant of probate is the process of establishing the validity of a will to the satisfaction of the Probate Office, which is the office charged with the task of issuing all grants of probate and administration.

Finding the information and valuations needed by the Probate Office takes longer if the person who dies owned many properties, including property abroad, and had multiple bank accounts and life insurance policies, and if there are many beneficiaries.

Is it always necessary to take out Probate?

As a general rule, if the bank account or accounts in relation to a deceased person, contain less than €25,000, and there is no real estate, such as land or houses, the bank will release the monies to the next-of-kin on condition that an indemnity is provided.

In that case, no grant of probate or administration is required.

Banks differ on the amount that they will release without production of a grant.

What about nominations? Is it necessary to extract probate in the case of a nomination?

In many instances, the holder of an account or investment can nominate the person who will become entitled, on their death, to the proceeds of that account or investment.

This procedure is most popular in the case of credit union and post office accounts, and often applies to some life assurance policies.

Provided that a valid nomination form has been completed, the funds will generally be paid out to the person named as the beneficiary under that nomination, without the production of a grant.

What happens in the case of property that is jointly owned?

Where a person owns property jointly with another, the most important question is whether that ownership is on the basis of joint tenancy or tenancy-in-common.

The difference is highly significant.

A surviving joint tenant will, in the absence of exceptional circumstances, on the death of the other joint-tenant, become automatically entitled to full ownership of the asset in question, regardless of the provisions of the deceased joint tenant’s will.

Joint tenancy normally applies in the case of property owned by married couples.

The vast majority of such couples now place their family home, and indeed many other assets, in their joint names as joint tenants, so as to ensure that on the death of one of them, the property will automatically pass to the survivor without the necessity of taking out a grant of probate.

This is both convenient and cost-effective.

On the other hand, when one tenant-in-common dies, there is no automatic right of ownership in favour of the surviving tenant-in-common.

Instead, the share of the deceased tenant-in-common will pass either under the terms of his will, or to his next-of-kin, in the event of intestacy.

How long does this probate/administration take?

Section 2 of the 1965 act says that “The personal representatives of a deceased person shall distribute his estate as soon after his death as is reasonably practicable, having regard to the nature of the estate, the manner in which it is required to be distributed and all other relevant circumstances, but proceedings against the personal representatives in respect of their failure to distribute shall not, without leave of the court, be brought before the expiration of one year from the date of the death of the deceased.”

There is a duty on the executor to administer the estate as is reasonably practicable.

In reality, the time taken will depend on the size and nature of the assets in the estate.

If the person who dies is the owner of a number of properties, including property abroad, and also has multiple bank accounts and life insurance policies, it can take considerable time to gather all the necessary information and valuations required to complete the papers that must be filed with the Probate Office.

In addition, where there are a large number of beneficiaries, it can also take time to secure the necessary

information from them, such as their PPS numbers, and details of any prior gifts and inheritances taken by them.

The executor will also need to obtain clearance from the Department of Employment Affairs and Social Protection, and from the Revenue Commissioners, before the estate can be distributed.

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.

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