Saturday, September 23, 2017

Probate Solicitor Dublin, Ireland

Probate Solicitor Ireland

TEN COMMON MISCONCEPTIONS ABOUT PROBATE

1. Only one witness is needed to witness a Will being signed.

Incorrect – A Will must be signed by the Testator (the personal making the Will) in the presence of two witnesses.

2. An Executor cannot receive a gift in a Will.

Incorrect – An executor is entitled to receive a gift in Will.

3. There is no need to make a new Will after marriage.

Incorrect – Marriage invalidates an existing Will. Consequently a new Will must be drawn up and signed after a marriage.

4. A witness to a Will can receive a gift in the Will.

Incorrect – A witness is not entitled to receive a bequest in a Will. If a person has witnessed a Will and is left a gift in that Will, the Will is not invalid but the witness is not
entitled to receive the gift.

5. No Inheritance Tax is paid by children who receive an inheritance from their parent in Will.

Incorrect – A child is entitled to receive an inheritance not exceeding €225,000.00 from their parent. The balance is taxed at a rate of 33% ( as at October 2014).

6. If a deceased has no Will the assets are forfeited to the State.

Incorrect - If a person dies without making a Will, their estate goes to their next of kin. It is only if the next of kin cannot be traced that the assets are forfeited to the State.

7. A valid Will cannot be challenged by children of the deceased.

Incorrect – A disappointed child is entitled to make a claim against the estate under Section 117 of the Succession Act, 1965 even if a valid Will has been made by their deceased parent.

8. Every child should receive an equal share of their parent’s estate.

Incorrect - The law does not provide that a child is entitled to any specific share of their parent’s estate. However a disappointed child can bring a claim against a deceased parent’s
estate under Section 117 of the Succession Act, 1965.

9. A separated spouse is not entitled to challenge a Will.

Incorrect – This entirely depends on the terms of a Separation Agreement/ Judicial Separation. If the separated spouse have waived their Succession Act rights, there is no entitlement.
However if not, they are entitled to a one third share of the estate (if there are children of the marriage) and a two thirds share if there are no children of the marriage.

10. The surviving spouse / surviving civil partner must pay inheritance tax on an inheritance they receive from their spouse / civil partner.

Incorrect - There is no inheritance tax to be paid by the surviving spouse / civil parAtner.

What does Intestacy mean?

Intestacy is where a person dies without having made a Will or where the Will they have made is found to be invalid.

Consequences of Intestacy

The consequence of intestacy is that the Succession Act of 1965 directs the division of the assets  in accordance to the blood relationship of surviving family members to the deceased person. If there are no living blood relations surviving the deceased then the deceased's assets are forfeited to the State.

Distribution on Intestacy (Where no Will was made)

Relatives Surviving Distribution of Share
Spouse and children Spouse two thirds, children one third
Spouse and no children Spouse takes all
Children and no spouse Children take all
Parents & siblings Each parent takes half
One parent & siblings Parent takes all
Siblings only All take in equal shares,
  with children of a predeceased sibling
  taking their parent's share
Nephews & nieces only All take in equal shares
Uncles & aunts All take in equal shares
First cousin, great uncle
/aunt, great nephew/niece     
All take in equal shares

 

N.B. If a child predeceases his parents leaving a child or children then that child takes his parent's share or if more than one that share is divided equally amongst the children.

The person appointed to act as Administrator is determined at the date of death of the deceased. This person will be the person who stands closest in blood relationship to the deceased - N.B. a surviving spouse will be preferred over a child.

The procedure to extract the Grant in intestacy cases is similar to that involved in extracting the Grant of Probate where there is a Will (see section on Probate).

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Dermot McNamara BCL,
Solicitor
Notary Public
Commissioner for Oaths

Collette Bryson BA (Hons)
Solicitor

Frances Cunneen T.E.P. Trust & Estate Practitioner

Lorraine Byrne

M.I.I.L.Ex, Legal Executive

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