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Wills and Probate

Grant of Administration with Will Annexed

The grant of administration with will annexed is one of many different grants of representation possible in administering the estates of deceased persons.

This grant is required where

  • The appointed executor renounces
  • There is no executor appointed in the will
  • The executor appointed does not renounce and refuses to apply for a grant of probate
  • Executors have been appointed but die either before the deceased of before they prove the will
  • The executor is under a disability eg a minor or a person of unsound mind
  • The appointment of the executor is void due to uncertainty
  • The executor is living abroad.

Who is Entitled to Extract the Grant of Administration with Will Annexed?

The entitlement to extract this grant is set out in Order 79, rule 5(6)

(6) Where the deceased died on or after the 1st day of January, 1967, domiciled in Ireland, leaving a will appointing no executor, or appointing an executor or executors who have been cleared off by death, renunciation, citation, or otherwise, the person, or persons entitled to a grant of administration with will annexed shall be determined in accordance with the following order of priority, namely:

(a) any residuary legatee or devisee holding in trust for any other person;

(b) any residuary legatee or devisee for life;

(c) any other residuary legatee or devisee or, subject to sub-rule (9) (b) hereof, which provides that live interests be preferred to dead interests, the personal representative of any such residuary legatee or devisee;

(d) any residuary legatee or devisee for life jointly with any ultimate residuary legatee or devisee on the renunciation or consent of the remaining residuary legatees or devisees for life;

(e) where the residue is not in terms wholly disposed of, the Probate Officer may, if he is of opinion that the testator has nevertheless disposed of the whole or substantially the whole of the estate as ascertained at the time of the application for a grant, allow a grant to be made to any legatee or devisee entitled to, or to share in, the estate so disposed of, without regard to the person entitled to share in any residue not disposed of by the will;

(f) where the residue is not wholly disposed of by the will, any person (other than a creditor) entitled to a grant in the event of a total intestacy according to the order of priority set out in sub-rules (1) to (5);

(g) any legatee or devisee or any creditor or, subject to sub-rule (9) (b), the personal representative of any such person.

Put simply, this means that the person who is entitled to the residue of the estate is the first person after the executor to prove the will.

If he/she predeceased the deceased or if no provision was made for the residue, the next of kin extracts the grant.

If the person who inherited the residue dies after the deceased but then dies, his legal personal representative extracts the grant.

Administration Bond

An Administration Bond is an additional document required for this type of grant and a Grant of Administration Intestate. It does not arise in extracting a Grant of Probate and is not required.

Section 34, Succession Act, 1965 deals with administration bonds:

34.—(1) Every person to whom a grant of administration is made shall give a bond (in this section referred to as an administration bond) to the President of the High Court to inure for the benefit of the President of the High Court for the time being and, if the High Court, the Probate Officer or (in the case of a grant from a district probate registry) the district probate registrar so requires, with one or more surety or sureties conditioned for duly collecting, getting in, and administering the estate of the deceased.

The Administration Bond is a type of insurance policy or guarantee which gives security to beneficiaries and/or creditors in the event that the estate is not administered properly.

It must cover double the gross Irish assets including the current market value rates of any land.

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Wills and Probate

Extracting Grants of Representation in the Administration of Estates

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There are different types of grants of representation possible, depending on the circumstances (eg testate/intestate) including

Extracting a grant of representation allows the administration of the estate of the deceased.

Is it Necessary to Extract a Grant?

There are certain circumstances where it may not be necessary to extract a grant of representation at all.

For example:

  1. Joint tenancies of property where the property passes to the surviving owner by survivorship
  2. Small estates-if the cash assets in an estate are less than €31,750, many financial institutions will release the monies without a grant provided the beneficiaries are clearly identified.

However, there are certain situations where extracting a grant to administer the estate is necessary. These cases include

  • Freehold land-where the deceased owned ‘realty’ in his sole name, it will always be necessary to extract a grant.

The general rule is that if the deceased had significant assets in the State, it will be necessary to extract a Grant.

Inland Revenue Affidavit (Form CA 24)

The first step in extracting a grant of representation is to fill out an Inland Revenue Affidavit (CA 24)

This is a sworn statement by the personal representative of the deceased of all the assets, debts, liabilities etc. of the deceased.

It is a long, detailed form which itemizes

  • Property in the State
  • Shares
  • Debts due to deceased
  • Debts owing by the deceased
  • Funeral expenses
  • Property outside the state
  • Financial assets
  • Beneficiaries
  • And more.

A ‘personal representative’ includes both executors (testate situation) and administrators (intestacy).

What is a Grant of Probate?

A grant of probate is a grant which issues from the probate office to the executor appointed in a will which ‘proves the will’ and registers it. This then allows the executor to administer the estate.

An executor does not have to act and can renounce his/her office. However, once an executor agrees to act and applies for the grant of probate, he/she cannot renounce without the consent of the High Court.

If an executor renounces, the order of priority of who can apply to extract a grant is set out in Order 79, rule 5(6) of the Superior Courts.

Rule 5(6) states:

(6) Where the deceased died on or after the 1st day of January, 1967, domiciled in Ireland, leaving a will appointing no executor, or appointing an executor or executors who have been cleared off by death, renunciation, citation, or otherwise, the person, or persons entitled to a grant of administration with will annexed shall be determined in accordance with the following order of priority, namely:

(a) any residuary legatee or devisee holding in trust for any other person;

(b) any residuary legatee or devisee for life;

(c) any other residuary legatee or devisee or, subject to sub-rule (9) (b) hereof, which provides that live interests be preferred to dead interests, the personal representative of any such residuary legatee or devisee;

(d) any residuary legatee or devisee for life jointly with any ultimate residuary legatee or devisee on the renunciation or consent of the remaining residuary legatees or devisees for life;

(e) where the residue is not in terms wholly disposed of, the Probate Officer may, if he is of opinion that the testator has nevertheless disposed of the whole or substantially the whole of the estate as ascertained at the time of the application for a grant, allow a grant to be made to any legatee or devisee entitled to, or to share in, the estate so disposed of, without regard to the person entitled to share in any residue not disposed of by the will;

(f) where the residue is not wholly disposed of by the will, any person (other than a creditor) entitled to a grant in the event of a total intestacy according to the order of priority set out in sub-rules (1) to (5);

(g) any legatee or devisee or any creditor or, subject to sub-rule (9) (b), the personal representative of any such person.

Rule 5(1) deals with the order of priority as to who can apply in an intestate situation:

5. (1) In determining to whom letters of administration of the estate of a person who died on or after the 1st of January, 1967, wholly intestate and domiciled in Ireland shall be granted, the persons having a beneficial interest in the estate of the deceased shall be entitled to a grant of administration in the following order of priority, namely:

(a) the surviving spouse;

(b) the surviving spouse jointly with a child of the deceased nominated by the said spouse;

(c) the child or children of the deceased (including any person entitled by virtue of the Legitimacy Act, 1931, to succeed to the estate of the deceased);

(d) the issue of any child who has died during the lifetime of the deceased;

(e) the father or mother of the deceased or, in the case of an illegitimate person who died without having been legitimated, the mother;

(f) brothers and sisters of the deceased (whether of the whole or half-blood);

(g) where any brother or sister survived the deceased, the children of a predeceased brother or sister;

(h) nephews and nieces of the deceased (whether of the whole or half-blood);

(i) grandparents;

(j) uncles and aunts (whether of the whole or half-blood);

(k) great grandparents;

(l) other next-of-kin of nearest degree (whether of the whole or half-blood) preferring collateral’s to direct lineal ancestors;

(m) the nominee of the State;

Who Can Apply for a Grant of Probate?

Persons who are executors, either by appointment in the will or by tenor due to the functions that are assigned to them in the will, can apply for a grant of probate.

Documents Needed to Apply for a Grant of Probate

At a minimum, the documents needed to apply for a grant of probate are:

  • The original will
  • A certified copy of the will
  • The oath of executor and a copy
  • The Inland Revenue Affidavit (CA24)
  • The Revenue Certificate for the High Court
  • The death certificate
  • The Probate Office fees.

Other documents may be required depending on the circumstances, eg affidavit of due execution or testamentary capacity.

If you need any assistance with the administration of an estate or Probate generally, simply contact us.

Categories
Wills and Probate

Making a Will in Ireland-6 Critical Reasons to Make a Will

change child's name

Making a will in Ireland is a seemingly straightforward task.

But it can go disastrously wrong and open up a can of worms for those left behind if not done properly.

The requirements for a valid will in Ireland are set out in the Succession Act, 1965 and you can read more about the requirements for a valid will elsewhere on our site.

Why make a will in Ireland?

Put simply, making a will ensures that you dictate

a) how your assets will be distributed on your death and

b) who will administer your estate.

Failure to make a will in Ireland will see an intestacy situation arising and who gets what will then be largely determined by the Succession Act 1965 with the Rules of the Superior Courts, 1986 (Order 79,rule 5) determining who is entitled to extract a grant of letters of administration intestate.

However, there are many other reasons why you should make a will-

1) It will allow you to provide for the special needs of family members and

2) It can lead to good taxation planning with the minimum amount of tax going to the Government and

3) It is cheaper and faster to administer an estate with a Grant of Probate rather than a Grant of Letters of Administration Intestate and

4) An insurance bond will need to be taken out for an intestacy situation

5) Peace of mind

Further considerations in making a will

There are a number of significant considerations about which you should be advised when making a will and which you should consider.

Section 98 of the Succession Act, 1965

Section 98 of the Succession Act, 1965 deals with a situation where a child (who him/herself leaves children) who is to benefit from an estate predeceases a testator.

If this occurs then Section 98 determines that the benefit does not lapse but goes into the estate of the deceased child. This could mean, depending on his/her will that the original benefit will go to the surviving spouse of that child and not to the grandchildren.

This may not have been the intention of the original testator but there is nothing that can be done about it post-death; you can make provision to prevent this happening while drafting your will though.

This is one of many unintended outcomes which may arise if you are not advised professionally when having your will drafted.

For this reason, it is strongly advised that you have your will drafted by a solicitor who can advise you as to the various outcomes and nuances that you might want to guard against.

Don’t put it on the long finger.

Use this contact form to make an appointment or enquiry about making your will.