Category: Administration of Estates-Probate

Categories
Administration of Estates-Probate

10 Tasks That Newly Appointed Executors Ought to Take Care Of

executors duties

Acting as executor of a loved one’s estate carries with it a huge responsibility.

It shouldn’t scare you off from agreeing to be the executor for a friend or loved one-after all, it is a great honour to be trusted sufficiently by a friend or relation. But you do need to know what an executor is expected and obliged to do.

Your function as executor is to extract a grant of probate to the estate of the deceased and to administer their estate. As executor, your powers and duties date from the date of death of the deceased.

From the date of death the whole estate devolves or passes to you as executors. You have very wide powers under general law, apart from any powers given to you under the will.

An executor may renounce the executorship but once you decide to take on the role of executor you cannot then renounce it at a later stage.

The duties of a personal representative last for life; therefore your obligations as executor are ongoing.

Below is a simple set of guidelines on the powers and duties of executors.

It is set out in very brief and summary form but will give you a good idea of what is involved in being and executor:

  • First duty of executor: disposal of the body of testator
  • Ensure the valuation and protection of the assets of the estate
  • Ascertain all liabilities/debts/taxes and the beneficiaries of the estate
  • Swear an Inland Revenue affidavit for filing with the Revenue Commissioners
  • Extract the Grant of Probate and gather in all the assets
  • Pay the expenses and debts of the estate
  • Prepare administration accounts.

The above is a basic summary of what you will need to do. A good, helpful solicitor will help you with all of the jobs set out above-in fact (s)he will do many of them for you and will guide and advise you on all matters in relation to the administration of the estate.

Your solicitor will also instruct you fully on all those duties or tasks which you alone can perform; (s)he will explain fully all documents and declarations which you are required to sign.

To help your solicitor and to make the administration of the estate as smooth as possible the following 10 tasks will need to be taken care of by you as executor:

  1. Collect financial information and assets from deceased’s home, details of accounts, share certificates
  2. Get death certificate (register death first!)
  3. Gather addresses of beneficiaries and family members
  4. Arrange insurance on property, contents and other insurable items
  5. Sort out or obtain at least funeral/headstone accounts
  6. Remove valuables from property and organise safekeeping
  7. Clear house and arrange for the sale of contents where necessary
  8. Sell car and cancel insurance
  9. Cancel health insurance and obtain any refund, if applicable.
  10. Apply for bereavement grant if appropriate.

See also the role, duties and powers of an executor.

Categories
Administration of Estates-Probate

Second Grants of Representation/De Bonis Non Grants

de-bonis-non-grant

A de bonis non grant arises where a personal representative has extracted a primary grant of representation but does no fully administer the estate, for example where he/she dies.

A de bonis non grant is appropriate where the personal representative is alive when the primary grant issues but subsequently dies; a revocation of a grant will arise where the personal representative dies between the time he applies and the grant issues.

A DBN grant will also be required where a property is to be sold and it is then discovered that the property is still registered in the name of the deceased former owner-for one reason or another the personal representative failed to execute a deed of assent to vest the property in the name of the beneficiary. This failure by the personal representative makes it necessary to raise representation once again to the estate of the deceased registered owner by way of a de bonis non grant.

There are 2 types of DBN grants:

  1. if the deceased died testate the appropriate DBN grant will be a “grant of letters of administration with will annexed DBN”
  2. if the deceased died intestate the correct grant will be a “grant of letters of administration intestate DBN”.

The persons entitled to take out a DBN grant will be, on intestacy, as set out in the Succession Act, 1965 and the Rules of the Superior Court, 1986, order 79.

In a testate situation the grant will be given to the next person entitled under the rules referred to above, assuming that the executor has died or renounced, and all other executors have died or renounced.

Documents Required to extract a DBN

To extract a DBN you will need the documents required to extract a primary grant and in addition you will need:

  • the original/primary grant
  • inland revenue form A3 (E) or A3 (C)
  • form D1 where there is immovable property

Other second or subsequent grants can arise where there is unadministered probate and the rights of another executor were reserved prior to the death of an executor; if a will has been proved by an executor and subsequently a codicil to that will is found, a supplemental grant of probate can be issued to the acting executor.

If you find yourself in any of the situations outlined above you should really seek professional legal advice.
By Terry Gorry Google+

Categories
Administration of Estates-Probate

The Role, Duties and Powers of an Executor in the Administration of Estates and Probate

executors duties

An executor is the person appointed in a will to administer the estate of a deceased person. He/she is entitled to take out a grant of probate to the estate of the deceased.

An administrator (administratix if female) extracts a grant in an intestate situation or in a testate situation where the executor has died.

Both executors and administrators are known as ‘legal personal representatives’.

Once a person undertakes the role of personal representative of an estate his/her role as a personal representative never ceases.

Who Can Be an Executor?

Pretty much anyone, provided they are not under a disability, and this includes a beneficiary can be an executor.

A professional such as an accountant or solicitor can also act as an executor.  However an executor is not entitled to be paid for his services as of right so there should have been a charging clause inserted in the will.

An executor can be appointed expressly in the will or “according to tenor”-this derives from the tenor of the will and the functions assigned to them in the will.

There is no limit on the number of executors that can be appointed but no grant of administration shall be granted to more than 3 persons unless the Probate Officer otherwise directs.

An executor does not have to act; he can accept, reserve or renounce the executorship.

The Courts have decided that only in very serious cases will it order the removal of an executor.

The Role of an Executor

An executor’s job is to extract a grant of probate to the estate of the deceased and to administer the deceased’s estate.

The powers and duties of the executor date from the date of death of the deceased with the whole estate devolving to the executor.

An executor does not have to act and may renounce but once he/she takes on the role, he/she cannot renounce at a later date.

The Duties of an Executor

The first duty of an executor is to dispose of the body of the deceased. In practice, this will probably have been done by the deceased’s family.

The executor then needs to ascertain the precise value of the assets of the estate and protect them. This will involve ensuring that insurance is in place, where appropriate.

The executor must also ascertain all the liabilities of the estate such as taxes, outstanding claims, and outstanding debts. He/she must also ascertain all of the beneficiaries of the estate and check into prior gifts/inheritances that they may have received.

Then, the executor must prepare and swear an Inland Revenue affidavit which will list all assets and liabilities of the estate.

The executor then must lodge all the relevant documents in the Probate Office and extract a Grant of Probate. Once the Grant issues, he will gather in all the assets and dispose of those not being given to beneficiaries.

The executor must also pay all of the debts and expenses of the estate and distribute the assets, making sure that all taxes are paid. These taxes will include taxes due by the deceased prior to his death, all taxes arising out of the administration of the estate itself, and any inheritance taxes and capital gains taxes arising from distribution of assets.

Lastly, the executor must prepare an administration account where he accounts for all monies received and disbursed during the administration period.

Note:

  1. an executor cannot delegate his authority but may engage the services of other people to help him, eg experts such as a solicitor, accountant, taxation specialist, auctioneer to value property etc.
  2. an executor is not entitled to be paid for carrying out his duty but he is entitled to recover expenses incurred by him in the carrying out of his duty
  3. there is no obligation on the executor to give a copy of the will to anyone before it is admitted to probate, nor to inform a beneficiary of his interest
  4. the duties of a personal representative are for life
  5. there is no limit on the number of executors that can be appointed
  6. an executor can be appointed in a will or by implication, ie according to tenor (eg no executor is appointed in the will but someone is given the function of discharging the debts of the deceased).

The Powers of an Executor

An executor is given wide ranging powers by statute (the Succession Act, 1965) and by the will itself.

The statutory powers include:

  • the power to sell all  or any part of the estate to pay debts and to distribute the estate among the persons entitled
  • the power to act as a trustee for the purposes of the Settled Land Acts
  • the power to appropriate any part of the estate towards satisfaction of any share in the estate (subject to the provisions of section 55 of the Succession Act, 1965)
  • the power to appoint trustees for an infant beneficiary
  • the power to lease property for the administration of the estate
  • the power to mortgage
  • the power to settle claims and disputes.

Powers typically granted in a will include

  • the power to appropriate without serving any notices or consents
  • the power to invest or purchase authorised securities
  • the power to employ agents/managers.

 Executor, Guardian, and Trustee-What’s the Difference?

The role and duties of the executor have been set out above.

A trustee’s job is to carry out the wishes of the settlor as indicated in the trust.

The guardian’s role is to act in loco parentis to the child for whom he is appointed guardian.

If you are a personal representative, you would be well advised to seek the advice of a solicitor who can help advise you on all matters relating to the administration of the estate and who will explain fully all the declarations and documents that you will be required to sign.
By Terry Gorry

Categories
Administration of Estates-Probate

Grants of Probate in Ireland-What You Need to Know

grant of probate

This piece will look at what is a grant of probate, who can apply for a grant, what documents are needed for probate, is it always necessary to extract a grand of representation, and more.

There are different types of grants of representation possible in Ireland, depending on whether the deceased made a will or not 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.
By Terry Gorry Google+

Categories
Administration of Estates-Probate

What’s a Grant of Administration with Will Annexed and When Do You Need It?

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

administration-of-estates-and-probate-ireland

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.
By Terry Gorry Google+