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Probate and selling a property as executor

Probate executor sale of your property in Ireland
As an executor, you are selling the family home and CKP is here to help you manage this emotive process.

Irish Probate is a legal process that allows a person known as the executor in Ireland to deal with a deceased person’s assets. Irish probate dictates that the authority to deal with a deceased person’s assets is given in the form of a document known generally as a grant of representation which appoints the executor and sets out their instructions by the deceased, commonly known as a will

Irish probate dictates that if a person dies with a valid will and has appointed an executor, then that executor will get a grant of probate for the estate from the Probate Office.  The executor must deal with the person’s assets in the manner laid out in the will. The executor has the first right to ‘prove’ a will (establish that the will is valid so as it can be carried out). If an executor does not wish to ‘prove’ a will, he/she can renounce or reserve the right according to Irish probate law. Anyone with two or more executors can apply for the grant of probate. They may apply jointly.

A Grant of Letters of Administration

Can be sought if a person dies in the absence of a valid will.  In this instance, Irish Probate Law dictates that the assets are dealt with by a person known as an administrator. In general, Irish Probate dictates that the person/people entitled to this grant to become an administrator are usually one or more of the nearest living relatives.

Grant of Letters of Administration with Will Annexed:

According to Irish Probate – This document is issued if a person dies with a valid will – however an individual other than the executor is trying to apply for the grant.  If the executor is unwilling or unable to act or has died, or the will does not appoint an executor, then this grant will be given. The usual applicant is whoever is entitled to the residue (this refers to the remainder in a will after all other debts and gifts have been settled).

When is a Grant necessary?

If an individual dies leaving behind him/her a property/land in his/her name (as the sole owner), then Irish Probate Law dictates that it is necessary to apply for probate so that the property/land can be sold or transferred into the name of another person.

If the deceased left money in a bank or any type of financial institution then under Irish Probate Law, a grant of representation may be required. The institution in question should ideally be contacted by the executor or next of kin to establish what is required.

On a positive note, according to the Irish Probate – if a person dies leaving a house and/or land that he/she owned jointly with another, then that house and/or land may automatically pass to the surviving joint tenant. If that is the case, usually there is no need for a grant. However, in some joint ownerships property will not automatically pass to the other surviving owner. If a person dies leaving money in a joint name account, then a grant may be necessary due to the fact that the money may not automatically pass to the surviving account holder – it depends on the type of account and on the reasons for which the joint account was opened.

The Typical Irish Probate Procedure

These are the predictable Irish Probate stages in the administration of an estate:

  1. Inform the beneficiaries of their gift, request their PPS number and a history of previous gifts
  2. Request Charity Number from benefiting charities
  3. Keep charity acknowledgements for monitoring by Commissioners for Charitable Donations
  4. Gather and collate all the necessary information.
  5. Contact the various financial institutions and ask them to confirm the date of death balances
  6. Contact the utility providers and ask them to verify accounts position
  7. Arranging with the bank for payment of funeral expenses
  8. Contact Department of Social Protection to inform them that the person has died
  9. Complete Revenue Affidavit CA24 for Revenue and Probate Office so as to obtain the appropriate grant.
  10. Distribute certified copies of the grant and the completed withdrawal forms to financial institutions
  11. Notify Department of Social Protection to ensure that there are no claims against the estate
  12. Call in all assets
  13. Ensure deceased’s tax affairs are completely finalised
  14. Ensure that all bills are paid
  15. Have accounts approved by executor(s)
  16. Distribute gifts and account to all beneficiaries and to the executor(s).
  • Name, address, occupation, marital status of the deceased
  • Names, addresses and estimated Irish benefits of all the beneficiaries of the Irish estate and the relationship (if any) of each beneficiary to the deceased person
  • Official Copy of Death Certificate of the deceased person.
  • Confirmation as to whether or not the deceased was ever registered in the Irish Social Security system. If so there will be on record Personal Public Service (PPS) number in respect of the deceased.
  • A list of the deceased person’s assets in this jurisdiction with supporting Euro vouchers/valuations from the Irish institution.
  • At this initial stage, a simple copy of the original will and foreign Grant of Probate will be sufficient (Court Sealed and Court Certified copies will be required later. In the case of moveable property situated in Ireland, and if there is no foreign grant, we will require an Affidavit of Law from the instructing solicitor abroad verifying entitlement to the grant. Precedent will be sent to you if this arises)
  • A Power of Attorney to enable us to take out the Irish Grant – we will send you a precedent on receipt of the above documentation and your instructions to act. At the same time, we will send you a general authority form to cover matters such as endorsing cheques, data protection and your compliance with anti-money-laundering legislation.

According to Irish Probate Law – The Irish estate cannot be distributed unless the deceased person’s tax affairs in Ireland are in order. On receipt of formal instructions to act Probate Ireland will send you a precedent and authority on this subject.

(If the aggregate value of Irish bank accounts etc exceeds €100,000, the Irish Revenue needs to be satisfied as to the source of the funds and the proper accounting for tax in relation to that source)

The steps above concerning Irish Probate & Grants of Probate from abroad is a simplified initial list to help matters to be moved forward.

A list of requirements specific to any particular case will be prepared when Probate Ireland receive the above initial requirements.

Always seek prompt legal advice in matters such as this.

Example: If liability for tax arises there are penalties attached to a delayed payment.

You will see that the process is a little heavy in terms of paperwork but our aim is to complete the assigned work with minimum delay and minimum inconvenience to you.

On receipt of the above, a solicitor will be able to let you have an estimate of fees and a note of the further requirements specific to your particular matter.

Until quite recently, all of the countries of the world have had different rules dealing with succession rights (that is the rules relating to inheritance whether testate or intestate). However, since the creation of the Succession Regulation (EU) No 650/2012 on 17 August 2012, all that has changed for 24 of the member states of the European Union (with the addition of Croatia on 1st July 2013). The Regulation aims to harmonise the laws relating to succession throughout the European Union. Although in force, the Regulation will only apply upon the deaths of residents of the Succession Countries* (listed below) after 17 August 2015.

Aims of the Succession Regulation

The stated aims of the European Parliament’s Directorate-General for Internal Policies which were dealing with succession rights included:

1. The adoption of the concept of “habitual residence” (in lieu of nationality or domicile) as the most important criterion in determining the jurisdiction and applicable law in inheritance and succession matters.

2. The general rule of habitual residence can be overridden by the individual testator or testatrix by the use of the concept of “party autonomy” so that “the testator is allowed to designate his national law as the law governing his succession as a whole, by expressing his choice expressly and in testamentary form.” In other words, unless an individual’s will states the national law to be applied, the succession law of the country in which they were habitually resident at the time of their death will apply.

3. Universal application of the same succession rules so Article 20 of the Succession Regulation provides that any law specified by the Regulation shall be applied whether or not it is the law of a Member State.

4. The Succession Regulation adopts the principle of the unity of the succession. As a result, the law applicable to the succession will govern the succession as a whole, regardless of the nature of the assets (movables or immovables).

5. The creation of the European Certificate of Succession, which is a standard form certificate designed to enable heirs, legatees, executors or administrators to prove their legal status and/or rights in any or all of the Succession Regulation Countries.

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Can a house be sold before probate is granted in Ireland?

If a sale is subject to probate, probate has to be granted before contracts for sale can be issued and the legal conveyancing process commenced. 

Currently, the probate office takes about 6 months to process a probate application. However, if the application is incomplete or has errors, or if probate is contested, it can take a lot longer. 

In these circumstances it is foolish to put a house on the market before Revenue have processed the probate application for the following reasons...

1. There will be fewer people interested in buying the property. As price is set by demand and supply, a reduction in demand usually reduces the price achieved. Buyers are very reluctant to buy houses subject to probate due to the long and indefinite timeline.

2. The buyer is not legally bound to complete the purchase until contracts are signed, which cannot be done until after probate is granted. House prices will likely change while they are waiting. If house prices rise, the buyer will gladly hold on for their bargain buy, but if house prices fall they can simply pull out of the purchase agreement and buy a cheaper property or a nicer house at the same price. If the estate agent has done a brilliant job and has got a very strong price for your property, the buyers have plenty of time to change their minds at no cost to them.

3. In 2023 it took us an average of 29 days to sell a house to the stage of accepting an offer  This is the time you would save by selling a house subject to probate. 

In conclusion, to complete the sale as quickly as possible for the top price you should make sure the probate application is correct, complete and accurate before submitting it. We are happy to provide probate valuations for properties in our local community. Once the application is submitted, you should prepare the property for sale. We are also happy to advise on that process. Finally once probate is granted the sale can progress. We have a record of getting sellers top money in a fast time.

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