Probate Q&A

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Q. My father died eight months ago.   My brother is the Executor in the estate.  He was and still is living in the house as he is separated.  Our mother is long since dead.  My father left the house to both of us equally.  The problem is that my brother seems in no hurry to sort out my father’s affairs.  Every time I mention it to him he just says that he will be getting around to it shortly.  Can he continue just to do nothing?

A. The winding up of the affairs of a lifetime can be a long drawn out business.  In addition to this, there can be a reluctance to face the finality of the death of a last parent.  People deal with their grief in different ways.  Your father obviously carefully prepared for this eventuality by preparing a will clearly setting out his final wishes. These are of course legally binding wishes and it is both the duty and the responsibility of the Executor to carry out those wishes.  It is accepted by the law that this is, or can be, a lengthy procedure and the Executor is granted a year in which to carry out the final instructions of the deceased, before any beneficiary can take any action against the Executor.  This is generally known as the ‘Executors Year’.  It is really a recognition that the steps involved in taking out a Grant of Probate are both slow and at times tedious.  However in this case you would hope that it would not come to this.  As your father made a will, could it perhaps all be happening in your late fathers solicitors office?  This would be the ideal solution for both of you if your brother just can’t face the prospect of dealing with all the paper work himself.  Why don’t you suggest this to your brother and arrange for both of you to attend for an appointment with your late fathers solicitor where you can offer to help in any way you can by getting paperwork organized for the solicitor thus relieving your brother of a job he just may not be able to face for any number of reasons.  It is best to sort this out in any fashion which allows you both to remain friends into the future which is undoubtedly what your father would have wanted since his will is very fair and should not give rise to any reason for a falling out between you.

 

Q. The father of my son died recently.  His father and I were never married and went our separate ways as soon as my son was born.  Although he paid maintenance from time to time, he never had a relationship with my son.  He married some years later and went on to have a family.  My son is now 19.  Would he be entitled to inherit anything?

A. Your son has the same inheritance rights as any of the children of his marriage, since the marital status of the parents of any child is of no concern to the law.  All children are treated equally in the eyes of the law.  However, the question as to whether or not he is entitled to anything in this specific case is another matter.  Firstly, I take it you do not know whether there is a will or not.  You should make enquiries.  There is no public registry of wills so you will have to make direct enquiries yourself or instruct solicitors to do it on your behalf.  This would involve writing to his widow since she is the person most likely to have been appointed as his executor if there is a will.  It has to be said however, that many couples making joint wills tend to leave everything to each other if they survive each other by a certain period of time, usually 30 days.  Most couples just have a family home in joint names and joint bank accounts and if this is the case, then all of these pass automatically by survivorship to the surviving spouse.  Again, if this is the case in this instance, then, there is really nothing to leave to any of the children.  However, clearly you need to know.   If, on the other hand, your son’s father was a man of some means, then your son may be able to make a claim.  Legally, your son is now an adult and must give these instructions himself.  Strangely, adult children who have been reasonably well provided for and educated have no automatic right to a share of their parent’s estate.  However, the Succession Act does allow for a child to claim in instances where they have not been properly provided for in life and this would particularly apply in a case where other later children of a marriage received a better chance in life by way of education or opportunities.  If this were the case here, then your son would certainly be entitled to make a claim on his late father’s estate.

 

Q. My father died just over two years ago now. My brother is the Executor of his Estate. There are five children and the Estate was to be divided equally between all of us.  My brother has not responded to any of my requests to deal with the Estate or to provide me with information.  He lives in London.  Is there anything I can do to ensure that I get what is due to me?

A. According to the terms of your late Father’s Will, your brother was the named Executor. It is his responsibility therefore to administer the Estate and ensure that all named beneficiaries get what they have been duly left in the Will.  The duties require any Executor to act without delay and to ensure that the assets of the deceased are maintained.  In this case, your brother’s delay is certainly unreasonable.  It is more than reasonable to allow a period of some two years for an Estate to be administered.  You say that he has not responded to your requests.  Our advice therefore is for you to consult a Solicitor who can advise you in relation to what options are open to you.  You are entitled to proceed by way of an application under the Succession Act, 1965, to the Probate Office to summons your brother to either a) prove or b) renounce Probate of the Will of your late Father.  If your brother chooses to renounce his position as Executor to extract a Grant of Probate then, you could be appointed as the new Executor to administer your Father’s Estate.  There are certain time limits that apply to any such application.  As the period of over two years has already passed to commence the application for a Grant of Probate, you should not delay any longer and should take action immediately.  It would normally be the case that the costs of this application would be paid for out of the value of the Estate of your late Father.  I hope that you find this information helpful and our advice is to consult a Solicitor sooner rather than later.

 

Q. My father died recently and he and my mother, who has survived him, were separated many years but never formally.  In my Father’s Will I am appointed as the Executor.  He left my mother a sum of money but not very much.  Is there anything she can do?

A. Your mother is entitled to her legal right share in the Estate of your father. This legal right share only applies in Testate situations (i.e. when there is a Will).  In a situation where there is no Will then, the surviving Spouse is entitled to 2/3s of the Estate, if the deceased had children and the entirety of the children if the deceased had no children.   In the present situation, your Father died Testate (having made a Will) and, although he has included a bequest to his wife, from what you have said, it may not be sufficient to satisfy her legal right share.  The right of the surviving spouse to the legal right share ranks after the rights of Creditors of the deceased but before all other beneficiaries.  Section 115 of the Succession Act, 1965 provides that the surviving Spouse can elect to accept either the legal right share entitlement under the terms of the Succession Act or under the bequest in the Will.  If the surviving Spouse does not elect to take either the bequest or the legal right share then, he/she will be deemed to have taken the bequest and will lose the legal right share.  The legal right share amounts to ½ of the Estate if there are no children or 1/3 of the Estate if there are children.  In short therefore, your Mother will have to make a decision as to whether or not invoke her entitlement under the terms of the Succession Act, 1965 to take her legal right share or, to accept the bequest in the Will.  This entitlement is set out under Section 112 of the Succession Act, 1965.

In addition, Section 56 of the Succession Act provides for the right of the surviving spouse to acquire the dwelling house and household chattels to be appropriated in partial or whole discharge of their bequest.  This section provides for the surviving spouse to request the Personal Representative (in this case, you) to appropriate the dwelling in which the surviving Spouse ordinarily resides if this property is part of the Estate of the deceased person.  This appropriation will go towards the satisfaction of his/her legal right share.  There are certain restrictions on this appropriation which are set out in subsection 5.  Given that your parents were separated over 10 years, it is probably unlikely that your Mother is still living in the former family home but, it may well be the case, depending on the circumstances of their separation.  Your Mother does need legal advice and should be advised to seek this advice as soon as possible so that she may be independently advised in relation to her entitlement.

 

Q. My parents were Separated for many years but, there was nothing formal about the Separation. When my Father died earlier on this year, he had not left anything to my Mother.  He left everything between his three adult children.  My Mother now intends to claim her legal right share.  This would leave little or nothing for us.  Is this legal? 

A. Unfortunately for the children of the deceased in a case such as this, the right of the surviving Spouse ranks in priority over the children of the deceased and the contents of the Will, apart from Creditors. In other words, your Mother’s right will take precedence over yours and, in effect therefore, the contents of the Will are no longer valid.  In addition, there is no compensation for aggrieved beneficiaries who will lose out as a result of a surviving Spouse opting to take their legal right share.  This right of the surviving Spouse is cast in stone and there is nothing beneficiaries can do to avoid it.  Perhaps in a situation such as this, family mediation might be appropriate to see if matters can be resolved to everybody’s reasonable satisfaction.

 

Q. My older brother died late last year without making a Will. I am his only surviving sibling.  I understand that I am the person who is next entitled to apply to take out a Grant of Administration.  I am a bit apprehensive about taking on this responsibility.  Can you offer any guidelines?

A. Firstly, we are sorry to hear about your brother. It must be quite a blow to see your last sibling pass on.  In any event, I assume that various enquiries have been made to see if your brother did make a Will.  Assuming that these enquiries have not resulted in finding any Will then, your brother’s estate will have to be distributed according to the rules of intestacy.  You are right to be cautious about taking on the role of administrator.  It places a considerable onus on you and indeed anybody taking on that role.  Ultimately, the responsibility is to call in the assets of the deceased person, maintain their value during the administration process and ultimately, distribute the Estate according to the strict rules of intestacy.  In addition, all funeral and testamentary expenses must be paid.  Any financial institution where your brother had an account, will readily release money to pay the funeral bill on production of an Invoice.  You will not need to wait to obtain the Grant of Administration to do this.  Although this is of course a big responsibility, nonetheless, it is also something you might like to do in order to properly wind up the affairs of your late brother.  There is also a sense of satisfaction in ensuring that his assets are properly distributed.  In some ways, your brother made a choice not to make a Will and he was perfectly free to do so.  He may always have considered that you would take on the role if called upon to do so.  Obviously, it is not ideal but equally, it is not uncommon.  With regard to any legal exposure, you are only liable up to the value of your brother’s Estate.  There is no crossover to any of your own assets.  The distribution process may be straightforward enough if your brother was survived by you and possibly the children of other siblings.  In that situation, his Estate is divided equally between his surviving siblings (you) and the deceased siblings share is divided equally between their child or children and if more than one in equal shares.  I am assuming that your parents are deceased.  In cases where there is an absent sibling, it is extremely important that they are traced.  This is where problems can arise if perhaps a sibling emigrated many years ago and never kept in touch with the family.  However, there are professional organisations now who will carry out searches and in most cases, they have been successful in their search.  In short, the job asked of you is certainly a responsibility but equally perhaps an honour to assist in bringing the affairs of your late brother during his lifetime to a conclusion.  In circumstances where there is no Will, it is often preferable to use a Solicitor for the application as it keeps you at arm’s length and can certainly avoid numerous requests for updates from the various beneficiaries.  It would certainly be worth having a consultation with a Solicitor with a view to discussing your next step.

 

Q. My brother and I are the Executors in my late mother’s Estate.  There are five of us in the family, four of us have always been in contact.  One brother left for Australia as a young man and, after a few years, he ceased all contact.  That is over twenty years ago now.  There was not a great deal in the Estate but we are now ready to distribute it.  Are we safe to distribute it without reference to our brother?  We do not even know if he is still alive or if he ever married. 

A. You do not say whether or not your mother died with or without a Will.  Either way, assuming that your brother in Australia was included in the Will, he would certainly be included in an Intestacy (no Will).  In the circumstances, he is as entitled to his share of your late mother’s Estate as if he had always been living back home.  The fact of his absence is no bar to an inheritance.  It would be considered potentially negligent on the part of the Executors of your mother’s Estate to distribute the assets without reference to your brother.  The responsibility of all Executors is an onerous one and requires absolute honesty in dealing with the affairs of the deceased family member.  This means that all efforts must be made to trace your brother in Australia.  There are professional organisations to help with this if preliminary enquiries do not reveal any information.  His share of the Estate can be used to fund the fee of the professional organisations.  However, it is worth making preliminary enquiries first of all and reading back through any old correspondence of your brother to see where he last lived.  A simple notification in the local paper may prove very worthwhile.  There may be Irish organisations within the town where your brother resided who would be more than happy to help.  In short therefore, although you can distribute the balance of the Estate for the remaining siblings, you cannot under any circumstances make a decision to put your brother’s share back into the pot for distribution among the remaining four.  Remember, even if he is now deceased, he may have children who would be equally entitled to inherit their parent’s share.  Indeed, if this were to be the case, in years to come they may come looking for their Irish relatives and it would be extremely uncomfortable to have to explain an error which took place at the time of distributing your parent’s Estate.  In short therefore, efforts should now be focused on trying to find your brother in Australia.

 

Q. My mother passed away last Summer and in her Will, apart from leaving everything equally between her children, she made certain specific bequests.   She left me her engagement ring.  However, with her Will was a letter of wishes and in this letter, she said that she would like her engagement ring to go to my younger sister.  The Grant of Probate has not yet issued. I am wondering what the right thing to do is here?  We have not fallen out about it but there is naturally a bit of confusion.  Perhaps you can help.

A. It has to be said that the directions in a Will take precedence over a letter of wishes.  A letter of wishes is usually done to deal with items not listed in the Will.  You do not say if there is a date on the letter of wishes.  It may well be that your mother changed her mind about the engagement ring when she came to actually sign her Will.  She may have forgotten to take out any reference to the engagement ring in her letter of wishes.  Either way, the fact is that the Will is a legal document which is legally binding and as such, is a document which will take legal precedence over the letter of wishes.  In short therefore, the engagement ring should go to you.  However, as this is a family situation and both of you appear to be taking a pragmatic view of this, it would obviously be best if it was decided amicably between the two of you.  Perhaps there may be some other ring which could be given to your sister as an alternative.  The answer to your question however is that you are legally entitled to the ring and after that it is a matter for you and your sister to decide what you wish to do.

 

Q. I was named as Executor of my sister’s Will. She died several weeks ago.  I am wondering what I should do next?

A. Firstly, we would all like to sympathise with you on the recent passing of your sister. She obviously held you in high esteem to name you as Executor in her Will.  However, with that vote of confidence, comes responsibility.  You are now responsible for ensuring that the wishes of your late sister as set out in her Will are fully implemented.  Your first role will be to gather together all the information relating to your late sister’s Estate and possessions and eventually, to pay any debts she may have owed and then the rest is distributed according to the terms of her Will.  The application to take out a Grant of Probate can be complicated and you may like to employ the services of a Solicitor to make the application on your behalf.  It is however always possible to apply in person and it is not essential to employ the services of a Solicitor.  If your sister’s Will is relatively straight forward and her assets are easy to identify, and there is no challenge to the Will then, you should be able to deal with this yourself.  The main thing however, is to ensure that you do it correctly as there is a legal responsibility to ensure that the beneficiaries receive their entitlement in a timely fashion and that the assets of the deceased in any such case are preserved so as to avoid any deterioration in their value.  What this means is that you will have to ensure that any house your sister may have owned is kept in good condition until such time as the Estate is able to deal with it in an appropriate fashion.  If you run into difficulty, you can always consult a Solicitor.

 

Q. My brother died recently without making a Will. He has three surviving siblings.  What should we do?  

A. I am sure you are all saddened by the loss of your brother and now you are also left with the responsibility of dealing with his Estate. You say that he died without a Will. However, what enquiries have you made in this regard. You should check to see whether or not he had any recent transactions with a Solicitor, or even transactions in the past.  Did he own a house?  If he did own his house then he must have used a Solicitor when he purchased the house.  Enquiries should be made with that Solicitor to see if he made a Will.  Similar enquiries should be made with other local firms of Solicitors.  A thorough check of his personal effects should be made in his house to see if there is any evidence of the making of a Will.   Enquiries should be exhaustive as there is a substantial difference in dealing with an Estate Testate (with a Will) or Intestate (without a Will).  If indeed, after all these enquiries, it transpires that your brother did indeed die without a Will, he is said to have died “Intestate”.  In those circumstances, everything he owned is distributed in accordance with the Law by an Administrator.  To do this, the Administrator needs permission in the form of a Grant of Representation to deal with the Estate.  In an Intestacy case, application is made to the Probate Office for LETTERS OF ADMINSTRATION instead of a GRANT OF PROBATE.  You do not say whether or not your brother died leaving a Wife and children but, if he has a Wife or Civil Partner then, that person will be entitled to apply for the letters of administration in his Estate in priority over a sibling.  If he has no spouse/civil partner then, his siblings rank in priority in their entitlement to take out letters of administration.  They can do so jointly or one can choose over the others, reserving the rights of the remaining siblings.  The following is a general guideline as to the distribution of Estates on Intestacy.

 

If your brother is survived by;

a) a spouse/civil partner but no children (or grandchildren), the spouse/civil partner gets the entire Estate.

b) a spouse/civil partner and children, the spouse/civil partner gets 2/3s of the Estate and the remaining 1/3 is divided equally between the children. If one of the children has died then, that share goes to his/her children in equally shares between them.

c) Children but no spouse/civil partner. The Estate is divided equally between the children (or their children)

d) Parents but no spouse/civil partner or children. The Estate is divided equally between the parents or given entirely to one parent if only survives.

e) Brothers and sisters only. The Estate is shared equally among them with the children of a deceased brother or sister taking his/her share.

f) Nieces and nephews only. The Estate is divided equally among those surviving.

g) Other relatives only. The Estate is divided equally between the nearest equal relationships.

h) No relatives. The Estate goes to the State.

You may require the assistance of a Solicitor in clarifying matters as it can become somewhat complex when a deceased dies with no Will.

 

Q. I am the Executor in the Estate of my late brother. In his Will, he left his house to be divided equally between his three surviving siblings.  He left no cash whatsoever.  The funeral expenses have not been paid.  One of my brother’s says that he does not think that his share of the house should be reduced to allow for the funeral expenses.  As I am doing the Probate myself, because there is no money, I would appreciate your advice on this question.

A. Firstly, we are sorry to hear about the death of your Brother. You have been entrusted with the responsibility of dealing with his Estate and you are quite correct to take advice on this as it is an onerous responsibility.

It should be said at the outset that funeral expenses are a priority debt payable from any assets of any deceased in each and every Estate irrespective as to whether the Estate is solvent or insolvent and these expenses can in fact be paid before the Grant issues if there are cash assets in which to do so.  The accepted procedure in the event that there are no liquid assets available to discharge the funeral account until non-liquid assets have been realised following extraction of the Grant of Representation, is for the Executor (your goodself) to communicate with the Funeral Director and advise them that you will be dealing with the Estate of your deceased brother.  You should also tell them that there are no liquid assets to pay the funeral expenses but that same will be discharged once the non-liquid assets have been realised.  Your brother is incorrect in saying that he is entitled to his full share without payment of the funeral expenses.  This is a priority debt similarly with a Revenue debt, and must be discharged before specific bequests to beneficiaries. In other words, the funeral expenses and any other testamentary expenses must be discharged out of the proceeds of the sale of your brother’s house before there is any division of the remaining assets between the beneficiaries.  You should communicate this to your brother and equally advise the Funeral Directors that your brother’s funeral expenses will be discharged but that there will be a delay because you will have to wait until the Grant issues and the house is sold.

 

Q. Our mother died over 6 months ago now and in her last Will she appointed my brother and myself as Executors. She divided her Estate unequally and the brother who is getting the least, wants to contest the Will.  We are trying to keep things as amicable as possible.  My brother and myself as Executors would like to just divide everything equally between all of us.  There are 6 of us in total.  Not everyone is in agreement.  Are we entitled to make this decision as Executors and avoid a lengthy Court case?

A. We are sorry both about the death of your mother and the possibility of a challenge to her Will. Naturally, and quite rightly both you and your brother are trying to keep things as amicable as possible and certainly with a view to avoiding a family feud which could continue for generations.  You have raised an interesting question here and one which on the face of it, you might certainly imagine that as Executors, your mother also entrusted you with the power to settle disputes.  However, although there are considerable powers conferred on you and your brother as Executors under the terms of the Succession Act 1965 nonetheless, that power does not extend to settling Section 117 applications taken against the Estate.  These applications arise where any child of the deceased mounts a challenge to the Will on the basis that they have not been properly provided for.  In these cases, the Executors cannot settle these claims without the express consent of all beneficiaries.  You need to thread extremely carefully here as to settle a claim with your aggrieved brother to the detriment of your other siblings could expose you and your brother to a personal liability to the dis-affected beneficiaries. Therefore, in short, the consent of all of the beneficiaries who might be adversely affected by any change to the terms of your Mother’s Will must be obtained.  Indeed, this should be obtained in writing.  Given that your position is somewhat precarious and potentially liable to expose you to a claim if it is not handled properly, we strongly recommend that you attend with a Solicitor to try to negotiate a diplomatic settlement with the agreement of all beneficiaries.  Until then no agreement whatsoever should be reached with your brother no matter how much you sympathise with him.

 

Q. My brother died recently and appointed me as the Executor in his Will. I am very apprehensive however about starting an application for a Grant of Probate as it seems as if my brother had more debts than assets.  Could I be liable for those debts if I took out a Grant of Probate? 

A. Firstly, we would like to sympathise with you on the death of your brother. To answer your question, no Executor can be responsible for the debts of the deceased over and above the value of the Estate.  You are not personally liable for any of these debts but there is a responsibility on the Executor to call in all the assets, maintain their value and ensure that creditors are paid as far as is possible.  No creditor can come after you personally and, even if they were to threaten to sue you, the net value of the Estate is the extent of your exposure.  This however is of course subject to any execution honestly dealing with the Administration of the Estate of the deceased and not giving unfair priority to one creditor over another.  In a complex case such as this, it would be worth having a consultation with a Solicitor to advise you fully in relation to how it is best to proceed.  You should gather together the details of all the assets and liabilities to present to the Solicitor so that the best advice possible is given to you before you make a decision as to which way to proceed.

 

Q. My father died recently and, despite every effort, we have been unable to find a Will. We have to conclude therefore that he died Intestate.  Unfortunately, the Family Home was in his sole name and, there are very few assets over and above the value of the family home.  There are six children and, following a family meeting recently, all but two have agreed to waive our share in the Estate back to my Mother.  However, the rest of us are really worried that our Mother might have to sell the house to pay off the other two siblings.  What is the position here?

A. Firstly, we would like to sympathise with you on the passing of your Father. Unfortunately, the situation is not straightforward and your Father has left a number of problems behind which will now have to be resolved as best as possible.  As you say, you now have to conclude that your Father died without making a Will and, as such his Estate has to be administered according to the laws of Intestacy as set out in the Succession Act, 1965.  Your Mother is therefore automatically entitled to two third of the entire Estate (including the value of the family home) with the remaining one third to be divided between all the children.  All but two of you have agreed to waive your rights in favour of your Mother.  The question arises as to what and how your Mother will satisfy the share of the two children who have declined to waive their rights.  The answer to this will depend firstly on the value of the Estate.  If, for arguments sake, the house is worth €250,000.00 and the remaining financial assets worth €50,000.00 thus giving a total value in the Estate of €300,000.00.  Your Mother is automatically entitled to two thirds of this amounting to €200,000.00.  She can obviously apply this to her share of the family home and the remaining €50,000.00 is divided between the six children, giving a share to each of them of approx. €11,666.00.  To pay off the two children would require your Mother to pay out €23,332.00 but not out of the cash, as this has already been accounted for in your Mother’s share.  Perhaps the family could come to some arrangement with the other two children that they might get their share on the death of your Mother.  Alternatively, there is a provision whereby the surviving spouse can apply to Court to have the dwelling house given to him or her either without paying the difference or by paying such sum as the Court thinks reasonable.  The Court may make such an Order if it thinks that hardship would otherwise be caused, either to the surviving Spouse or to a dependent child.  Perhaps a conversation should be had with the two children regarding their Mother’s entitlement to have their share dispensed with and, perhaps in the light of this possible option available to your Mother, a more acceptable solution might be arrived at.

 

Q. My Father remarried after my Mother died. He has three children by his marriage to my Mother and, when he remarried ten years ago, his new Wife had two teenage children.  My Father died recently and, in his Will, he appointed me as his Executor and left everything to be divided equally between his own blood children and his second Wife.  My Stepmother is not happy that her two children have been left out of the Will.  She is talking about challenging the Will.  They are now in their early 20s. Do they have any rights?

A. As a general rule, stepchildren are not considered to bear the same relationship to their stepparents as natural children. Interestingly, however, they are regarded as having the same relation to their stepparents under the Capital Acquisitions Tax Act, but not under the Succession Act.  As such, your stepsiblings would be unlikely to succeed in any challenge to the Will but that it not to say that they might not do so.  In the absence of a detailed consultation, it would be difficult to advise you fully.  Their case may be that their stepfather always “promised them something after he died” and that he failed to deliver on that promise.  However, in the absence of any such evidence, they are not provided for under the Succession Act and are not considered to be equal to the relationship of parents to their natural children.

 

Q. When my Father made his Will over 20 years ago, he only had a house to dispose of. In his Will he left the house to my Mother who has since died and, if she did not survive him, to all his children equally and his surviving two siblings, to whom he was very close.  Both are still alive.  However, circumstances obviously improved during those intervening years and, at the time of his death last year, he had purchased two other properties and had a reasonably substantial amount of cash in the Bank.  None of these are mentioned in his Will.  There are three children living and one deceased who had three of their own children.   Could you advise as to the position?

A. It seems to be the case that your Father died “partially Intestate”. Section 74 of the Succession Act states: –

Where the Will of a Testator effectively disposes of part only of his Estate, the remainder shall be distributed as if he had died Intestate and left no other Estate.

Section 74 makes it clear that the undisposed Estate must be distributed as if the Testator had died Intestate and had left no other Estate, thus rendering a partial Intestacy, independent of the provisions of the Will of the Deceased.  In other words, what will happen in your particular case is that the house will be divided between his children with the children of his deceased child taking the share their parent would have inherited and his surviving siblings in the shares set out in the Will whereas, the Intestate part of his Estate will be divided equally between his children and the children of his deceased child.   His siblings will not inherit any part of the Estate which will be considered to be Intestate.   In short, the major difference is that his surviving siblings will only be entitled to a share of the former family home and would not be entitled to a share of the remaining Estate, which he did not deal with in his Will.  It is likely to be a complicated enough application and consideration should be given to instructing a Solicitor to deal with the Estate as it is important to remember that, in every case, the Executor is liable for any errors in interpreting the Law and, in a case like this which is a partially Intestate/partially Testate Estate, it will undoubtedly lead to complications which are best avoided with the assistance of a Solicitor qualified to deal in complex Estates of this nature.

 

Q. My Brother died recently and, although he appointed me as his Executor, he has sadly left only debts. I am afraid to start the process of taking out any Grant of Probate as I do not want to be responsible for his debts.  Could this be the case?

A. We are sorry to hear about the death of your Brother. In every case, however, if the deceased died insolvent or there is not enough money to meet the bequests made, payments from the Estate are prioritised in the following order: –

a) Funeral, testamentary and administration expenses

b) Creditors who have security against the property of the deceased in the form a mortgage, charge or lien (these are different ways of securing loans)

c) Rates and Taxes due at the Testator’s death, wages and salary for work done for the Deceased within 4 months of debt and sums payable by the Estate in respect of contributions payable by the Deceased in the 12 months prior to death under social welfare legislation.

d) All other creditors

Where any Deceased dies in debt, creditors can only bring a claim against the Estate of the Deceased.  In other words, even if there is not enough money in the Estate to meet all the debts, the Executor in the Estate of the Deceased, or any relatives, are not personally responsible or liable for the Deceased’s debts.  The liability of any Executor in any Estate is only up to the value of the assets in the Estate and does not in any way extend to the assets of the Executor. We hope that this has been of some comfort.

 

Q. My Aunt died over two years ago now. She was unmarried and had no children.  She had a small farm.  In her Will she had left €1,000.00 to various nieces and nephews but the farm she has left to a nephew who lives abroad.  He has never worked the farm.  We did all notice that this nephew brought my aunt to the solicitors to have the Will drafted about six months before she died.  We feel sure that he persuaded her to leave him the farm.  At the time when my aunt died she was described as having a, “mild intellectual disability”.  I feel that she was not of sound mind when she made the Will.  Would we have grounds to challenge the Will?

A. I take it from your letter that you are considering challenging your Aunt’s Will on the grounds either of undue influence or the fact that your aunt may have been of unsound mind when she made her Will.  Contrary to what many people think however, challenging a Will is never easy and is always expensive.  You would need some substantial evidence to say that your aunt was of unsound mind at the time of making her Will and this would have to be backed up by medical evidence.  You will need legal advice.  You should start by looking at the cause of death on your aunt’s death certificate.  If any sort of cognitive impairment is mentioned as one of the causes of death then, you would have grounds at least to look into the matter further.  You do not mention who the Executor is.  If your nephew who inherited the farm is the Executor then he is obviously unlikely to investigate your aunt’s mental capacity to make a Will.  However, generally speaking if a Death Certificate mentions mental incapacity and the Will is executed within a relatively short period of time of the death then, the Probate Office themselves will enquire as to the mental capacity of the Testator and will usually look for a Medical Certificate from a treating doctor such as a G.P confirming that at the time of making the Will the Testator was of sound mind.  Having a mild intellectual disability does not of itself preclude anybody from making a valid Will.  There is also the question of possible undue influence but in the absence of a detailed consultation it would be difficult to advise you on this.  However, as a lot of time has already passed since your aunt died, you would need to act fast before the Grant of Probate issues if you are to consider a possible challenge to the Will.  This is a case where you absolutely must have legal advice and we would suggest that you make an appointment with a solicitor as soon as possible.

 

Q. My father has recently inherited some money from his late brother. He has generously advised my brother and myself that he would like us to benefit from the bequest.  Can he pass this bequest on to us and therefore avoid a liability for Capital Acquisitions Tax himself on the basis that he will not have received anything?  We do not want to do anything that would expose him to a liability for Capital Acquisitions Tax if in fact he is getting nothing from the estate.

A. Yes your father can have a Deed of Variation drafted passing on the gift to yourself and your brother.  Essentially, this Deed of Variation will mean that yourself and your brother will inherit and not your father and the Law will treat it as such.  You do not say how much is involved and therefore we are not in a position to advise you as to any potential tax liability based on your windfall.  Be aware however, that a Deed of Variation must be done within two years of the date of death for tax purposes otherwise your father will be deemed to have inherited the bequest under the terms of the Will and will be liable for any tax payable.  We wish you the best of luck.

 

 

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