First the will, then the grant of probate

Probate is the legal term for a procedure that gives a person, chosen by you, authority to carry out your wishes as set out in your will.
First the will, then the grant of probate

My husband died recently. He was farming and the land was in his sole name. He divided his estate between me and our three children and appointed me as his executrix. I understand I need to take out a Grant of Probate. What does the term ‘Grant of Probate’ mean?

In order to administer the estate, it is necessary to apply to the High Court for authority to deal with the assets. The document that issues is known as a Grant of Probate.

The person who dies is known as a testator. When the testator dies, his or her assets become frozen and a Grant of Probate is necessary to administer the estate.

On death, their assets are frozen. Generally, banks accounts and land cannot be dealt with until such time as the Grant of Probate issues. When someone dies without leaving a valid will, a Grant, generally, is still required and this is known as a Grant of Administration Intestate.

Is it always necessary to take out probate?

Where the balance is of a small amount, a bank may release funds without seeking evidence of a Grant of Probate. Each case will be considered on its own merits by the bank.

However, as a general rule, if the bank account or accounts contain less than €25,000, the bank will release the monies to the next of kin, if an indemnity is provided. Banks differ on the amount they will release without a Grant of Probate.

People can also nominate a person who will be entitled to take over their account.

This usually happens with credit union and post office accounts, or assurance policies.

Monies will be paid out to whoever is nominated on the account, and the monies will pass to that particular person, regardless of what is specified in the will.

A grant may also not be necessary if property is registered in joint names, as ownership will automatically pass to the surviving owner, regardless of what is specified in the will.

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

If a person owns property jointly, the will of the person who dies will have no bearing on what happens the property. Ownership will automatically pass to the surviving owner.

A very common example of this is the family home.

In most cases nowadays, when couples buy the family home, it is in joint names, and if that is the case, ownership will pass to the survivor on the death of the husband or wife. This is known as a joint tenancy. The husband and wife own the property as joint tenants.

If you and one or more other people own property as tenants in common, your share will pass to whatever beneficiaries are named in the will, unless you and your co-owners have a co-ownership agreement in place which regulates what happens when one of the owners dies.

How long does this process take?

It largely depends on the size of the estate.

If the person who died owned a lot of properties, and perhaps owned property abroad and also had multiple bank accounts and life insurance policies, it can take some time to gather all of this information.

If there are a large number of beneficiaries, it can also take time to gather the necessary information.

In some cases, the executor and solicitor will have no idea what assets the testator owned, and if a note of the assets is placed with the will, the executor can locate the assets promptly.

This will enable the executor and the solicitor to start the process a lot quicker, as they will know where and what to look for.

Once the executor and solicitor are satisfied that they have located all of the assets, an Inland Revenue Affidavit is completed and application for probate is submitted to the Probate Office, and then, usually after a couple of months, the Grant of Probate will issue.

The executor will need to obtain clearance from the Department of Social Protection and the Revenue Commissioners before the estate is distributed.

Once the Grant of Probate issues, the executor is entitled to gather in all of the property of the testator and distribute it in accordance with the directions in the will.

Monies in the testator’s bank account can be withdrawn, shares can be sold, title to houses and farmland can be vested in the beneficiaries or sold and the estate can be finalised.

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