Grant of Probate
Types of Grant
The vast majority of grants of representation, whether by way of grant of probate, letters of administration or letters of administration with the will annexed are issued from the Probate Office. They issue in the name of the High Court, even though a court order or judgment is not usually required. See the separate section on contentious probate, which may arise when the validity of a will is contested and is ultimately determined and adjudicated upon by the Court.
Most grants comprise either a grant of probate in respect of will or grant of administration where there is no will. There are other several other types of grant,
A grant of administration with will annexed is a grant in respect of the will equivalent to a grant of probate in vouching for its validity but given to somebody other than the named executor. Second and subsequent grants may be issued where for example, the representative dies without fully administering the estate.
Limited grants may be issued for particular purposes, e.g. for litigation or to deal with certain assets without dealing with the estate generally. There is also provision for a range of special grants for less common scenarios.
Application
The prescribed forms of application, and in particular the required oaths to prove entitlement, are set out in the Superior Court Rules. The application is made to the Probate Officer through the Probate Office.
Applications are lodged in paper form. If the papers show that the applicant qualifies for the issue of a grant, a grant formally issues from the Probate Office in the name of the High Court.
In strict terms, a grant of representation relates to assets within the State only. The High Court has jurisdiction to make a grant of representation, notwithstanding that there are no assets within the estate. This may be required for technical legal reasons so that personal representatives may exercise certain powers.
Statement of Assets
The process of probate has long been linked with inheritance tax and formerly death duty. Formerly, the proposed personal representative completed an Inland Revenue affidavit. Since 2020, an electronic State of Assets is filed.
The Statement of Assets requires information in respect of the deceased, beneficiaries, the value of the estate and prospective benefits. It also seeks information on non-probate transfers, i.e. transfers of assets which pass outside the estate. See the separate section on assets which pass on death outside of the estate.
The Statement of Assets / Inland Revenue affidavit Act is a balance sheet of the deceased, listing assets and liabilities as of the date of death. Valuations are usually e required in relation to property and complex assets such as unquoted shares. The prospective applicant must take responsibility for the return.
The Statement of Assets / Inland Revenue Affidavit distinguishes between assets and debts within the State and assets and debts outside the State. The grant of representation is issued in respect of assets within the State. If assets are situated outside the State, a separate grant of representation may be required in the foreign jurisdiction.
Formerly, the Inland Revenue affidavit was returned in duplicate to the Revenue Commissioners. A certificate from the High Court was required before the second stage of application could be made directly to the Probate Office.
Later, the Inland Revenue affidavit was filed with the Probate Office, which returned it to the Revenue Commissioners, Inland Capital Taxes Branch. Since 2020 once a valid Statement of Assets is filed, a certificate issues electronically, which is filed with the other papers in the Probate Office.
Executors
The executor named in the will has the primary right to prove the will. He need not necessarily act. If, however, he intermeddles with the estate, he may not be able to renounce or reserve his rights.
A person may not be expressly named as an executor but may be an executor in accordance with the tenor of the will. This means that the person is executor in substance by the terms and conditions of the will without being so formally named.
An executor may refuse to accept the appointment as executor and may renounce. He may alternatively reserve his right. This is more often done, where there are two executors. A single executor may not make a reservation.
The acts of a sole executor, one of two or more named in the will with the others reserving or not taking probate, are nonetheless valid as regards third parties.
A person may renounce his right to take probate. In this case, the persons next entitled become entitled to take the grant.
Where the executors are dead, have renounced or are unwilling to act following the procedure below, other parties, primarily the principal beneficiaries entitled, may apply for a grant of probate.
Oath of Executor I
The application requires the filing of the original will. An oath by the executor confirming that he believes the same to the original will, that the person did not marry or revoke it to his knowledge after making it, setting out the value of the estate, and undertaking to comply with and implement the terms of the will must be filed.
The original will is exhibited. Probate Office requirements also require the Death Certificate, certain other documents and payment of scale fees. In other cases, further documents may be required.
If the original will cannot be produced, it may be necessary to obtain a court order to prove a copy. It is necessary to account for the loss of the original will and show, in particular, that it has not been revoked. Where a will cannot be found, it is necessary to rebut the presumption that it has been revoked by destruction.
Oath of Executor II
The oath requires the following:
- details of the deceased’s name and address,
- occupation,
- date and place of death,
- relationship to the executor,
- the entitlement of the executor to the grant,
- the gross value of the estate,
- filing clause,
- particulars of solicitors.
The title/entitlement to the grant of probate will be simple in the majority of cases. Other cases have a more complex proof of entitlement. The title of the applicant must be shown in accordance with the relevant rules.
Will Issues
A will should be a standalone document. However, it is possible in some cases for the terms of another document or documents to be incorporated. The document must exist at the time and be clearly identified and referred to in the will as existing. The relevant document must be submitted to the Probate Office with the will.
Where the original will cannot be found, the fact of execution and non-revocation of the will must be shown. Where the will was in the possession of the testator and cannot be found, it is presumed that they have been destroyed and revoked. It may, however, be possible to show that it has been lost.
Apparent Defects I
In some cases, documents will be required to explain apparent discrepancies with the will. An affidavit of due execution may be required where there is something on the face of the will which suggests its possible invalidity.
Where there is no proper witnessing clause confirming the presence of two witnesses at the same time together with the deceased testator, an affidavit will be required. Where there is anything suggesting a lack of mental capacity, such as a death certificate disclosing certain causes of death, e.g. dementia etc. or that the will was made in certain medical institutions, an affidavit of capacity may be required.
The affidavit is to be made by the requisite parties and must give sufficient prima facie proof that the invalidating factor is not present.
Where the testator’s will does not appear in the correct place, it is necessary to give evidence regarding the circumstances of execution. Where the deceased has signed with a mark because of illiteracy or physical infirmity, evidence must be given that the will was duly read over, and an explanation for the mark in place of the signature must be given.
Where the will is weak, indecipherable or poorly formed, evidence may be given by way of explanation. This does not touch on mental capacity.
Where a third party signs the will on behalf of the deceased, it must be proved to be made by the direction or in the presence of the testator.
Apparent Defects II
Where the will is written on several sheets of paper that are not bound or stapled, it may be necessary to show that they are and were a single document by affidavit. Where there is any evidence that the will has been opened or re-stapled, an affidavit of plight and condition explaining and vouching that it has not been renounced is likely to be required.
Any evidence of tearing, adhesive, pinholes etc. is likely to require explanation by way of an affidavit of plight and condition.
Where there are amendments, alterations and erasures in the will, it is necessary to show when they were made and that there is no evidence of an intent to revoke the will. An affidavit of a witness is commonly required.
Where the attestation clause is incomplete, and it is not apparent on the face of the will that the testator signed at the end of the will in the presence of two witnesses, an affidavit is likely to be required.
The affidavits will generally be made by a witness but may also be made by a person, for example, who can explain a tear etc., in the will. It may, for example, have become torn or damaged after the will was made but in circumstances which do not point to an intention to revoke.
An affidavit of testamentary capacity will be required where the deceased died in a psychiatric hospital or the death certificate points to any mental infirmity, the testator was a ward of court. An affidavit of testamentary capacity will be generally sworn by the relevant general medical doctor who attended the deceased at the relevant time. If there is no such doctor, the doctor who attended the deceased at a later time may suffice.
If there is any issue regarding the validity of the will, the matter may be referred by the Probate Officer to Court.
Where the will contains a charitable bequest, a specified form must be filed. This is furnished to the charities regulator.
Grant of Probate
A grant of probate is a formal sealed document issued in the name of the High Court. It has a copy of the will attached.
The original wills are filed and retained by the Probate Office. They are then public documents which is open to inspection thereafter. There is online register of grants.
The executor is obliged to implement the will in accordance with its terms. See separately the sections in relation to the administration of estates and the relevant obligations that are applicable. In essence, the executor must gather in the assets, realise them and distribute them to the persons entitled.