O’SHEA LEGAL – PROBATE SOLICITORS IRELAND
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WHAT IS PROBATE – THE PROCESS EXPLAINED IN A NUTSHELL
What is Probate?
Probate is term used to describe the process of winding up the affairs of a deceased
person. A friend or relative cannot simply take control of the belongings of the
deceased person or their money or property. He or she must first apply to the probate
office of the High Court to get permission to do so and this permission is in the form
of a Grant. This is a written document under seal of the High Court which authorises
the proper person to take control of the estate and to distribute it to the beneficiaries in
the will or to the next of kin where there is no will.
What is a ‘Grant of Probate’?
The Probate Office will issue a Grant of Probate to the executor of a will or a Grant of
Administration to a next of kin where there is no will. This entitles you to collect in
the assets of the deceased by closing bank accounts, selling shares, selling property,
cashing in insurance policies etc. It also entitles you to open a bank account and to
pay off all the debts funeral and testamentary expenses. Finally you will be entitled to
distribute the assets or money to those persons entitled to same. The ‘Grant’ is the
legal proof to all that you are the person legally entitled to gather in the assets.
What is a Legal Personal Representative?
The Legal Personal Representative (LPR) or Personal Representative (PR) is the
name for the person (or sometimes persons) who are named in the will to look after
the assets of the deceased person. A person who dies having made a will dies ‘testate’
and in his will he nominates a friend or relative to be the executor. This person is also
called the legal personal representative.
If a person dies without having made a will, then the person is said to have died
‘intestate’ and a person, usually the next of kin, will be appointed to look after the
estate. This person will be called an administrator as opposed to an executor.
The LPR or PR is the term used to describe either the executor or the administrator.
Do I need to apply for a Grant of Probate?
Sometimes it will not be necessary for example:
 If there are no assets in the name of the deceased then there will be no need
for probate.
 If the deceased died with only a bank account with a small amount of money
then a Bank or other financial institution will release funds to the legal
personal representative without a Grant. However, you will be required to sign
a declaration confirming you are the executor or next of kin. They will also
ask you to verify that the entire estate of the deceased is less than €20,000.00
in value. They may also ask the remaining family to sign an indemnity.
 If the deceased was the owner of property jointly with someone then that
person may inherit the property automatically and there will be no need for a
Grant if there is no other estate.
 If there was a bank account in joint names then the property may pass
automatically to the surviving accountholder if the bank have been instructed
clearly that this is the intention of the deceased.
 If the balance held in a joint account exceeds €50,000.00 then the bank will
ask you to produce a Form IT8 stamped by the Revenue Commissioners to
satisfy them that there is no inheritance tax due on the benefit to the surviving
account holder. This will not be required if the surviving joint account holder
is the spouse of the deceased.
 If the deceased held a life insurance policy with a named beneficiary, in other
words the policy has a ‘nominated beneficiary’ to receive the proceeds in the
event of death then the production of a Death Certificate only will be required.
What in the function of the Executor or Administrator?
 Arrange the funeral;
 Find, read and understand the will if there is one;
 Contact the beneficiaries or next of kin;
 Make a schedule of all assets and liabilities;
 Decide if probate is necessary and employ a solicitor to apply for a Grant;
 Notify all relevant persons of the death;
 Advise the beneficiaries of the will or the next of kin if there is no will;
 Gather and protect the assets of the deceased and insure them;
 Apply for the Grant of Probate or Administration from the Probate Office;
 Gather in all cash belonging to or owed to the estate;
 Discharge all debts funeral testamentary expenses;
 Sell property or shares if necessary and cash in the policies or investments;
 Employ an accountant to file tax returns if necessary;
 Keep the beneficiaries appraised of all issues that affect them;
 Account to the beneficiaries for all assets and liabilities;
 Distribute the estate to the beneficiaries in the will or the next of kin-no will.
What if there is no Will?
Not every person dies having made a will. A person who dies without a will dies
‘intestate’ and the law of the land will decide who gets what. The rules are contained
in the Succession Act 1965. It also stipulates who is entitled to apply for the Grant of
Administration intestate. These are called the ‘next of kin’ and are listed in order of
priority.
What are the legal obligations of an LPR?
The LPR becomes legally responsible for the property and money belonging to the
estate. You are accountable to the President of the High Court and to the beneficiaries
and Next of Kin who will inherit the estate. You are required to act honestly and in
good faith and to follow the required rules and regulations.
You are obliged to act in the best interests of the beneficiaries or next of kin. You
cannot act in your own best interests. You must apply the highest ethical standards to
your job. The following are examples of what you must do:
 You cannot be paid for your services unless the Will consents to this.
 You cannot make a profit from your involvement with the estate. You may
however recover your reasonable expenses.
 If you wish to purchase an asset from the estate you must follow an open and
fair competitive tender process and obtain the consent of the beneficiaries
who will inherit the proceeds of sale.
 You are obliged to act as a prudent business person would act in the conduct
of his own affairs.
 You cannot invest in risky assets such as volatile shares.
 You must take into consideration the interests of all beneficiaries.
 You should treat all beneficiaries equally.
 You are obliged to provide detailed information to some beneficiaries in
relation to the management of the estate and the accounts.
 You are allowed one year from the date of death.
 You must account to the beneficiaries for interest on their entitlement after a
year has passed.
 You must always keep good records of everything you do.
 If you have to delegate work to professionals or experts such as solicitors,
accountants, stockbrokers, you must choose them carefully.
 You must prepare an account at the end in which a full picture of all
financial transactions is clearly set out.
 You must advise the surviving spouse or co-habitant of his or her rights in
certain circumstances.
If you do not follow the rules you can be removed by a court from your position as
executor or administrator. You could also be obliged to compensate the estate or a
beneficiary for any losses and to return property or assets.
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