Wills & Probate
It is vitally important to make a will so that you can determine what is to become of your assets after your death. If you die without a will your assets will be distributed in accordance with the intestacy provisions of the Succession Act 1965 – that may not be what you want.
It could give rise to unnecessary Inheritance Tax having to be paid by your next of kin. We can advise you about a will that best suits your situation. If you are married or co-habiting the tax implications must be considered. If your children are adults consideration may need to be given to their particular circumstances.
If children are under 18 special provision may have to be made for them. If any of your children have special needs extra consideration may need to be given to them. If you are separated or divorced careful consideration has to be given to drawing your will and the tax consequences that may arise. If you are single without dependants it is important to have good advice about the inheritance tax that may be payable by your beneficiaries.
When we are instructed, we will take care of taking out a Grant of Probate or Administration. We will compile a list of the assets and their values, prepare the affidavit for the Revenue Commissioners and apply for the Grant of Probate. We will prepare Inheritance Tax Returns for the Revenue Commissioners.
Revocation of a will
A will may only be revoked by:
- a subsequent marriage - unless the will is made with that marriage in mind,
a properly-executed later will or codicil which expressly revokes all earlier testamentary dispositions,
- a declaration in writing of intention to revoke the will or
burning, tearing or destruction by the testator, with the simultaneous intention of revocation.
An earlier will is only revived by re-execution or a duly-executed codicil. A declaration of intent to revoke a will must be executed in the same way as a will. A letter to a banker or solicitor who holds the will, asking him to destroy it, would revoke the will, whether or not it was actually destroyed. If no other will is executed, this would produce an intestacy. A will may be destroyed by someone in the testator's presence and by his direction.
If the original will has been lost, advertisements should be placed in suitable newspapers to try and find it. A copy will is not normally acceptable, in case the original will was revoked - perhaps by destruction. But, if a copy exists, the High Court may be asked to admit the copy to proof.
The solicitor or person who made the copy will must swear that it is authentic. If no photocopy or carbon copy of the original exists, someone with means of knowledge (such as a person who has the original on computer disk) may give evidence so the will can be reconstructed.
Extracting a Grant of Probate
When someone dies their property immediately passes into the hands of the executor's. Then in order for their property to be divided according to their wishes, the executor of their estate must apply to the Probate office to take out a grant of Probate in order to administer their estate. The estate of the deceased cannot be administered until the grant of probate is received from the Probate office. The Probate Office is part of the High Court and its core function in the probate process is to give authority to the correct person at law to deal with a deceased person's estate.
The three most common types of Grant issued by the Probate Office are the following;
Grant of Probate- Where a person dies leaving a valid will and appoints an Executor.
Grant of Letters of Administration- Where a person dies without having made a valid will, they are deemed to died intestate. The Grant issues to the person or persons who were their nearest next of kin at the date of death. The Succession Act 1965, determines who is next of kin.
Grant of Letters of Administration with Will Annexed- Where a person dies having made a valid will and a person other than the executor applies, the Grant issues to the persons entitled by law.
Enduring Powers of Attorney
An Enduring Power of Attorney is a document which sets out instructions as to how a person wishes assets to be dealt with and by whom if they become of unsound mind (e.g. if you wish for your property to be sold to pay medical or nursing home expenses, etc).