WILLS AND PROBATE

Probate, Wills and the Administration of Estates

We provide a full range of legal services in relation to the drafting of Wills and the administration of estates.  During the difficult time that follows, we will ensure that your loved one’s estate will receive careful, efficient and considerate attention in this office. We provide a full range of advice on Wills and probate, specifically in the following matters:

  • Drafting of Wills
  • Extracting Grants of Legal Representation
  • Contentious and Non-Contentious Probate Litigation
  • Execution and Registration of Enduring Powers of Attorney

Drafting Wills and Codicils: Why Make A Will?

When a person dies “testate” they have left behind a testamentary document known as a Will which outlines the manner upon which the deceased intended their estate to be distributed. The estate of the deceased which comprises of their assets and properties, both real and personal is distributed in accordance with this testamentary document.

A codicil is a testamentary document that may be used to alter or revoke specific provisions of a Will. They may be used for a variety of reasons such as the appointment of executors in addition to those named in a Will. A codicil must be duly executed in the same manner as a Will and the rules relating to their valid execution are identical to those which relate to the valid execution of a Will.

It is essential that you take legal advice when preparing a Will to ensure that it is both validly executed and accords with your wishes. In the absence of a Will a person is said to die “intestate”. In an intestate situation, the estate will be distributed in accordance with the Laws of the state. The distribution of an estate in an “intestate” situation will not necessarily be in accordance with the deceased’s wishes. It is essential that a Will is drafted to prevent such a situation arising, it gives a person control over the distribution of their estates and allows a person to choose who will handle their affairs upon their death. Making a Will gives you the ability to provide for children with special needs and an opportunity to fully consider taxation matters. Furthermore, there are far less expenses associated with the extraction of a grant of probate in circumstances where a valid Will has been left behind.

Grants of Representation

We can assist you extract grants of representation in the following situations:

  • A Grant of Probate (Where the deceased had made a valid will)
  • A Grant of Administration Intestate (Where no will was made by the deceased)
  • Intestate Applications where the Deceased died outside of this jurisdiction
  • Testate Applications where the Deceased died outside of this jurisdiction

In addition to the above grants of representation, circumstances may arise which will require varied or subsequent grants. Such grants may be required in circumstances where for example the executor appointed under a Will is no longer able to act or in circumstances where the estate was not administered in its entirety.

What is required in order to extract a grant of representation?

The executors are responsible for collecting the assets of the estate, paying all outstanding debts and distributing the estate to the beneficiaries. We have extensive experience in administering estates and we will ensure that the estate is administered efficiently and correctly. We will assist the legal personal representative throughout each stage of the process. We will liaise on your behalf with all financial institutions and state bodies to determine the extent of the estate. We will prepare all the papers required to extract a grant of representation including the Inland Revenue affidavit and distribute the estate on your behalf.

Is a grant of Representation always required?

There are a number of circumstances where a grant of representation is not required. It is essential that legal advice is sought from the outset to ensure that a grant of representation is necessary. Depending on the value of the estate, financial institutions may in certain circumstances release monies without a grant. However there are situations where a grant of representation is always required regardless of the value of the estate.

What are the grounds for challenging the validity of a Will?

In circumstances where a beneficiary seeks to challenge a Will, they may issue proceedings in either the High Court or the Circuit Court. There are a number of grounds for challenging a Will including:

  • Challenging a will on the grounds that the will was not executed in accordance with the statutory rules of execution or that at the time of execution the testator was not of sound disposing mind and did not know or approve of its contents. Furthermore a Will may be challenged on the basis that a testator was deceived into making a gift under a Will, in this circumstance, the deception may have the effect of invalidating either the gift or the entire Will depending on the circumstances
  • A Will may also be challenged on the basis that the testator was unduly influenced at the time of its execution.

Other claims against the estates of Deceased Testators

  • Proceedings may be brought by the children of a deceased testator pursuant to Section 117 of the Succession Act 1965. These applications may be brought by a child where it can be demonstrated to the satisfaction of the court that the testator did not provide for the child either by Will or during his/her lifetime. In such circumstances, a child may make an application which empowers the court to provide for them out of the estate of the deceased. A Section 117 application may only be made in circumstances where a testator has made a valid Will.
  • There are occasions where the deceased may have disposed of assets prior to their death resulting in an estate that has been substantially diminished. The assets may have been disposed of by the deceased with the intention of diminishing a share in their estate. In this instance spouses, civil partners and children may make an application under section 121 of the Succession Act 1965. An application may be brought under this section in both testate and intestate situations.
  • Where a beneficiary has received an unequal share in the estate of a deceased, a claim may taken under Section 63 of the Succession Act by a child in both testate and intestate situations. This may arise where a child receives a share in an estate in circumstances where their siblings have received previous capital advancements from the deceased. A claim may be taken against the sibling who received a previous advancement which if successful would have the effect of increasing the share of that beneficiary.
  • Co-habitants may make an application seeking provision from the estate of a deceased co-habitant. A co-habitant is eligible to make such an application provided they were living together in an intimate and committed relationship for 2 years or more in situations where they are parents of one or more children and 5 years in all other cases. A successful application allows the court to make provision for a qualified co-habitant out of the estate of the deceased.

Should you wish to make a Will or discuss any wills, please contact us on (01)-8338147 or alternatively you can contact us by email at info@collierlaw.ie. We are available to meet you in person or in the event that you are unable to meet at our office, we can arrange to meet you at a suitable time and place.