Probate: A Client Guide
What is probate?
Probate is the legal process used after a death to confirm a will, where one exists, and authorise a personal representative to deal with the estate. It protects beneficiaries, confirms who may administer the estate and allows debts, taxes and other obligations to be settled.
The usual steps are obtaining a Grant of Probate or Administration, identifying and valuing the assets, paying debts and taxes, and distributing the balance under the will or the intestacy rules.
When a grant may not be needed
Joint assets, including property or accounts held jointly with a spouse, often pass directly to the survivor
A financial institution may release a sole account containing less than €20,000 without a grant, but each institution sets its own requirements
Assets with a valid nomination or named beneficiary, such as some life policies or retirement benefits, may pass outside the estate
A small estate with no real property may qualify for a simpler procedure
When a grant is usually required
A grant is generally needed to sell or transfer property held in the deceased's sole name, access sole accounts or investments where the institution requires it, administer other substantial sole assets, or deal with Irish assets belonging to someone who died abroad.
The need for probate depends on how the assets were owned, their type and value, and the requirements of the organisation holding them. Both testate estates (with a will) and intestate estates (without one) may require a grant.
Executor, administrator and beneficiary
The personal representative administers the estate. An executor is appointed by a will. An administrator is appointed where there is no will, no executor can act, or the estate otherwise requires administration. Once accepted, the office of personal representative continues for life.
A beneficiary is a person entitled to inherit. The grant process affects when and how beneficiaries receive their inheritance and provides court oversight of the will and the person administering the estate.
Who may apply?
If there is a will, the named executors apply. If there is a will but no executor can act, the residuary beneficiary may apply for a Grant of Administration with Will Annexed.
Where there is no will, entitlement generally follows this order of priority:
Spouse or civil partner
Child
Children of a child who died earlier
Parent
Brother or sister
Children of a brother or sister who died earlier
Nephews and nieces
Grandparents
Uncles and aunts
Great-grandparents
Other next of kin of the nearest degree
The detailed rules are contained in the Succession Act 1965 and Order 79, rule 5(1) of the Rules of Court.
Identifying and valuing the estate
Before applying, the personal representative must identify all assets and interests, including jointly held property, and obtain values as at the date of death. Valuations may be required for the probate forms and fee calculation.
Administering the estate
Once issued, the grant authorises the personal representative to collect and manage assets, settle debts and taxes, and distribute the estate under the will.
If there is no will, the statutory intestacy rules determine the beneficiaries.
Professional advice can reduce errors, disputes and delay, particularly where the estate contains property, tax issues, foreign assets, family disputes or uncertainty about entitlement.
Further probate resources
Relevant resources include the personal and solicitor application procedures, current processing times, probate forms and fees, probate orders, and the procedure for objecting to or stopping an application.
The material contained in this article is for general guidance only and does not constitute legal or other professional advice. You should seek legal advice from your own Solicitor. Every effort has been made to ensure the accuracy of the content and no liability whatsoever is accepted by Murphy Rice & Co for any action taken in reliance on any information in this article. 