When a person dies having failed to make a will, he/she is said to have died intestate.
This means that his estate will be distributed in accordance with the Succession Act, 1965, part VI (sections 67-75).
This sets out the rules for distribution on intestacy, the shares of surviving spouses and issue, the shares of parents, brothers, sisters, and other matters.
The rules concerning who can take out the grant of administration intestate are set out in the Rules of the Superior Courts 1986, Order 79, rule 5:
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);
(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;
The entitlement to extract the grant of administration intestate is determined at the date of death of the deceased as section 71 of the Succession Act, 1965 provides:
71.—(1) Subject to the rights of representation mentioned in subsection (2) of section 70, the person or persons who, at the date of the death of the intestate, stand nearest in blood relationship to him shall be taken to be his next-of-kin.
It is worth noting therefore that if a person is not a next of kin at the date of death of the deceased, he cannot become one-even if all the deceased’s other relatives are dead. (‘Next of kin’ are blood relations)
70.—(1) If an intestate dies leaving neither spouse nor issue nor parent nor brother nor sister nor children of any deceased brother or sister, his estate shall, subject to the succeeding provisions of this Part, be distributed in equal shares among his next-of-kin.
“Next of kin” means a blood relation so step brothers/sisters, and step-relations generally have no right to extract the grant or to succeed.
No grant will be made to more than 3 persons jointly unless the Probate Officer directs it.
Shares of Surviving Spouse and Issue
Section 67 of the Succession Act states:
67.—(1) If an intestate dies leaving a spouse and no issue, the spouse shall take the whole estate.
(2) If an intestate dies leaving a spouse and issue—
(a) the spouse shall take two-thirds of the estate, and
(b) the remainder shall be distributed among the issue in accordance with subsection (4).
(3) If an intestate dies leaving issue and no spouse, his estate shall be distributed among the issue in accordance with subsection (4).
(4) If all the issue are in equal degree of relationship to the deceased the distribution shall be in equal shares among them; if they are not, it shall be per stirpes.
Documents Required to Extract a Grant of Administration Intestate
- Death certificate
- Oath for administrator intestate
- Typed notice of application or copy of oath
- Affidavit of current market value of land
- Inland revenue affidavit (CA 24)
- Administration bond.
The Oath of Administrator Intestate
This sworn document sets out the history of entitlement of the applicant to extract the grant of administration. It will also “clear off” all persons having a prior right to the grant and establishes the right of the applicant to extract the grant.
The Administration Bond
An administration bond is always required when a grant of letters of administration is sought.
The administration bond binds the “principal” to compensate the President of the High Court if he fails to administer the estate in accordance with the law. This cover must cover double the gross assets of the estate.
The administration bond is a guarantee for the beneficiaries and creditors of the estate in respect of the administration not being carried out properly. It is never required when seeking a grant of probate as an executor is never required to execute a bond.
The Per Stirpes Rule
The Per Stirpes rule only applies on intestacy. It is an exception to the general intestate rule that to inherit on intestacy you must be next of kin entitled at the date of death.
It allows kin to inherit the share of their parent, which would otherwise have lapsed due to the death of the parent prior to the death of the deceased, while others of their parent’s next of kin entitled (eg children/brothers of the deceased) survived the deceased.
Relatives of Half -blood and step relatives
72.—Relatives of the half-blood shall be treated as, and shall succeed equally with, relatives of the whole blood in the same degree
Kinship is based on blood so if there is no common blood with another person there are no succession rights to that person’s estate.
Disclaiming on Intestacy
Any proposed beneficiary can disclaim his inheritance. However you cannot disclaim in favour of someone else.
Where a person disclaims the property will automatically pass to the person next entitled under the rules of intestacy.
If a spouse disclaims her entitlement to 2/3rds of the estate his issue would inherit the whole estate.
By Terry Gorry