Wills, Executors, Next of Kin, Solicitors and Probate

Simon Gruber Says

This is information on handling the financial side of a bervement. As if the loss itself wasn't enough, you can soon find yourself surrounded by paperwork and unable to access bank accounts. This is a rough guide to what it involves.

1. Will

Some people make wills, some don't. Whether they never got around to it, didn't have time, or just didn't feel it was needed. There are many reasons. My advice is make a will once you pass 30. I know it seems morbid, but it's important. Leaving a will makes the process of settling Estates a whole lot easier on your wife/husband/next of kin and speeds up things like unfreezing bank accounts.

In a will, the Testator(person who makes the will) nomininates a person or persons who will be responsible for settling their Estate, this person is called an Executor, and those who will benifit from the will, Benificiaries. In a lot of times between husband and wife, the spouse will be both the Exeuctor and sole Benificiary.

Usually a condition of becoming an Executor is that they must survive the deceased by at least 30 days before they can start dealing with the Estate. Because of this, many people add secondary clauses. Example:-

"I appoint my husband (insert name here) to be my Executor and sole Benificiary of my will provided he survives me by 30 days.

If my husband does not survive me by 30 days then the following provisions shall apply:-

I appoint (insert name here) as my Executor......."

2. Executor

The Executor is responsible for dividing the Estate as per the instructions in the will (I leave the sum of €5,000 to so and so, €10,000 to such and such). But before any of this can happen, all debts the Testator has and any claims against the Estate (funeral expenses are a common one) must first be settled. The remainder of the Estate is then divided as per the will.

3. Next of Kin

If there is no will made then usually the Next of Kin becomes an Administrator of the Estate, having similar duties to that of an Executor. Next of Kin works by the following order.

1. Spouse
2. Children
3. Parents
4. Siblings
5. Nieces & Nephews
6. Grandchildren
6. 1st Cousins
7. 2nd Cousins and so on....

Here's where it gets difficult. If there is more than one Next of Kin, all must receive equal shares. But, for example if siblings were Next of Kin of the deceased, but one of their brothers or sisters died before them, then their share goes to their Next of Kin. You could imagine how hard this could be if 1st Cousins were the only Next of Kin and some of them were deceased.

Also in order to claim money from a bank or anything, their forms would need the signatures of all the Next of Kin, regardless of where they live. Some could be in the US, Australia....anywhere.

A work around of this is extraction of Letters of Administration, which I'll come to later.

4. Solicitors.

Some people say a solicitor is required when dealing with an Estate. This is a myth. A solicitor is only required if an Executor needs certified copies of documents in relation to the Estate. However an Executor may wish to hire a solicitor to handle the Estate on their behalf. Bear in mind that the Executor probably was somebody close to the deceased person and suffered a great loss with their passing and really does not wish to have to go through the hassle of having to wind up the Estate all alone. However, others feel they should do it, as it gives them something to occupy themself with and start to move on with things.

A solicitor can handle everything for the Estate including claiming all monies held by the deceased and extracting a Grant of Probate in order to have titles changed. All the Executor will need to do during this time is sign various claim forms.

However, this is not a realistic option for some as it can be quite expensive, with a bill for sevral thousand Euro being taken from the Estate at the end. In this case you may have to think about this "I'm really not feeling up to doing all this, but can I afford to spend all that money on a solicitor?" Recently, due to the recession, a lot more people have been handling the affairs themselves.

5. Grant of Probate

Probate is the term given to the act of settling an Estate by paying all the deceased's debts and distribruting the remainder to the benificiaries.

Unless the Estate is of a very small value (below c. €10,000-€15,000), a Grant of Probate will need to be taken out by the Executor, especially if property is involved. It is basically a document from the High Court granting the Executor the right to settle the Estate.

In order to obtain it, a Schedule of Assets has to be drawn up. This includes value of property and all the accounts held by the deceased at the date of death (please note that any joint accounts or life insurance will not be part of this as they will pass to the survivor directly and don't form part of an Estate) and a list of all debts.

Usually a Grant of Probate will need to be obtained in order to get banks to release funds held in a deceased person's accounts if it's above their "Probate Limit" (c. €10,000 for most). If the money held is below this limit, they will normally just want to see the Will and probably want the Executor to sign an indemnity form, which is a form whereby the Executor agrees to use the money obtained from that bank to pay the debts and or divide between the benificiaries. But if the Executor dosen't do this, then the bank can't be sued for releasing the money.

If there is no will or if the only Executor named in the will has also died or renounced their right to be an Executor, Letters of Administraton may have to be taken out. It's basically the same thing, except instead of there being an Executor, the Next of Kin or someone nominated by the Next of Kin deals with the Estate. It means that one person is able to make a claim for the Estate without requireing the signatures of all the Next of Kin. However, it is still the Adminsitrator's job to track down all Next of Kin and ensure they receive their share of the Estate.

6. Joint Accounts

It is important to note that joint accounts will be frozen, but the money can normally be released to the surviving joint holder upon production of a deat cert and filling in a few forms. A will, Executor or Grant of Probate are not required in this case.

jos28

Thanks for all the information Simon. I am just about to start tackling my Mam's will and did not know where to start. Your post has answered lots of my questions.

Fdegan67

I have been appointed executor of my fathers will, but certain Irish banks will not tell me how much if any money is held by them on his behalf. They will only send this information to a solicitor on foot of a letter from that solicitor. Note that I am not trying to transfer any money or pay any bills. I just don't wish to incur the cost of the legal fees for something I can easily do myself. I would have assumed that as executor I should legally have access to this information provided I supplied the banks with death certificate, proof of appointment.

mjhera

Hi Simon & all, What happens when you are a cousin of the deceased and the executors are 2 people that have no family involvement? and another question - are the executors under any obligation or do they have to answer to anyone - namely a solicitor?

I forgot to mention that the deceased was a member of the clergy (no spouse, children, etc.) and the estate split in 2. Portion 1 settled 1998, portion 2 (myself as sole beneficiary of this portion) still not settled 14 years on.

Bettystown133

Hi how long before a solicitor can release money's from frozen accounts or do I have to wait until the estate has been sold and everything is divided at the end, my mothers house was due to be sold but the deal fell through