Daireann Gibson advises
Thinking about what will happen when a loved one dies is a topic that older people often prefer to avoid. This is natural and understandable to a large degree, but it is also an instinct that can lead to many people being unprepared for what to do when the worst happens, creating additional confusion and complications at what is already a stressful time.
With the COVID-19 pandemic continuing to pose a real danger to public health, the Law Society of Ireland has noted a significant surge in the number of individuals seeking to make wills, suggesting that these issues are currently at the forefront of people’s minds. Having a valid and up-to-date will in place is certainly a wise move – but for maximum peace of mind, it is also important to make sure you understand what you need to know when administering the will of a family member or loved one.
In order to make this sometimes complex subject easier to understand, the legal experts at Gibson & Associates have created a new guide to Ireland’s probate laws to help you understand exactly what needs to happen when you are selected as the executor of a will. Here, we will explore some of the key points to remember, and give you a clearer idea of how the process works.
What are the basic steps of the probate process?
If you have never handled any of the legal issues that come with writing or executing a will before, you may not understand the purpose of the probate process or how it should be handled. This can create significant legal complications when a loved one dies, which is why it is vital to at least have a strong understanding of the basic principles.
In the simplest terms, the principle of probate works as follows:
- Before someone dies, they should create a legally binding will to lay out exactly how their money, property and personal belongings – collectively known as their estate – will be divided up after they die. The will should also include details of who will be responsible for looking after their family after they are gone
- As part of the will writing process, the writer will specify one or more individuals to take responsibility for administering the will, ensuring their intentions are carried out according to the terms they have requested. Those nominated individuals are known as the executors of the will
- When the person dies, the executor must apply to the Irish Probate Office for legal permission to start executing the will. This is known as a grant of representation, or most commonly a grant of probate
- The grant of probate will authorise the executor to start the process of administering the estate. This means the assets of the deceased can be collected together, divided up and dealt with according to the contents of the will, while meeting all necessary legal obligations
It is important to follow all of the steps carefully, taking expert advice from a solicitor when you are unsure about any of the details. If you make a mistake during the probate process, it can result in significant legal confusion, which could result to a number of negative outcomes:
- There may be delays in the distribution of your loved one’s estate
- The beneficiaries of the will may not receive the inheritance chosen for them
- The wishes of the deceased may end up being ignored or overruled
- Legal conflicts could arise over the details of the will
- As the executor, you could be held personally and financially liable for legal claims made against your loved one’s estate
All of these outcomes will create significant extra complication and stress at what will already be a distressing time for you and your family, which is why it is so vital to get this right first time.
What are you responsible for when administering an estate?
As the executor of a will, it is your duty to handle the probate process from beginning to end and ensure all of the beneficiaries receive their inheritance in a timely manner. In order to achieve this, you will need to fulfil the following responsibilities:
- When the person dies, you will need to obtain the original will and a copy of the person’s death certificate, in order to provide proof that the probate process can now begin
- You will need to comprehensively review all of the assets and liabilities of the deceased person, in order to work out what is owed, which properties need to be transferred, what taxes should be paid and any other steps that must be taken
- You must submit the documentation to either the Central Probate Office in Dublin or your local District Probate Registry, to obtain a grant of probate. It will be necessary to pay a fee before you can receive this
- Finally, you must gather all of the assets of the estate and pass them along to their intended recipients. This process will include calling in any outstanding debts owed to the deceased, paying off debts or taxes owed, covering the cost of the funeral and compiling the final accounts of the estate
It’s important to take a comprehensive approach to all of these steps in order to make sure you have covered everything. Here are some of the questions you should be asking:
- Have you reviewed all of your loved one’s assets thoroughly, including their bank statements, building society books, insurance policies, saving certificates, shares, stocks and title deeds?
- Do you know who will inherit their financial, property, digital and physical assets? How will any business or commercial assets be handled, and what will happen to any property jointly owned by the deceased with another person?
- Who will become the legal guardian of children under the age of 18? Do you know how your loved one’s cohabitants or civil partners will be cared for?
- Are overseas properties or assets included in the will? If so, do different laws apply to these?
- Has the deceased left behind any outstanding debts? From which accounts are these to be paid? Are there any tax relief measures that might apply?
By keeping all of these responsibilities in mind, you should be able to execute the will effectively and without delay, minimising the risk of any problems arising.
How long does the probate process take?
It is not possible to give an exact estimate for how long the probate process will last, as the timescales involved will always depend on the complexity of the circumstances. However, you should always bear the following benchmarks in mind:
- It can take between three and six months to get a grant of probate approved, depending on the size of the estate and the amount of paperwork you provide
- Beneficiaries of the will are legally entitled to receive their inheritance within one year of the date of death. If this does not happen, legal action may be taken against you as the executor of the estate
With this in mind, it is always best to take action on executing a will as early as possible, in order to avoid the risk of any costly delays.
What happens if a loved one dies without a will?
If your loved one has not left behind a legally valid will, the usual probate process does not apply, and their estate will need to be divided according to the laws of the Succession Act. In these cases, you will need to apply for a grant of letters of administration to gain permission to administer the estate, rather than a grant of probate.
When there is no will, your loved one’s assets must be distributed to their next of kin, according to a predetermined list of priorities, favouring the closest living relatives. This may mean that certain members of the family are left out, or that some of their assets are claimed by the government.
As such, dying without a will means that the wishes of the family may not be able to be carried out as intended. If you are in this position after the death of a loved one, it may be best to seek expert legal advice to weigh up your options.
How can solicitors help you to manage the probate process?
As this guide demonstrates, the probate process can often be quite complex, with a lot of legal requirements to consider and actions that must be taken to avoid additional delays, costs and conflicts. As such, if you are selected as the executor of a will, it is highly advisable to secure the services of a professional probate solicitor to guide you through it.
Your solicitor can provide you with crucial advice on the legal obligations you need to meet, helping you to complete the associated paperwork and applications, and to meet all of the deadlines you are set. If any delays or complications do arise, your lawyer can also assist you in overcoming them as efficiently as possible.
Although probate solicitors will generally need to be paid a small percentage of the value of the estate in exchange for their services, the benefits of doing so are significant – so much so that most people will consider hiring a solicitor to be an essential part of the probate process.
By keeping these details in mind and working with your legal team to make the right decisions, you can put yourself in the best possible position to make sure your loved one’s estate is handled in accordance with their wishes. Knowing what to expect will give you the peace of mind to know what to do when the unexpected occurs – as well as helping your family to rest easy, knowing they will be properly looked after, no matter what happens.
By Daireann Gibson is Managing Partner at Gibson & Associates LLP