A will is a witnessed document that sets out in writing the deceased’s wishes for his or her possessions, (called his or her ‘estate’), after death.
Reasons for making a will
It is important for you to make a will because if you do not, and die without a will, the law on intestacy decides what happens to your property. A will can ensure that proper arrangements are made for your dependants and that your property is distributed in the way you wish after you die, subject to certain rights of spouses/civil partners and children.
What happens if you die having made a will
If you have made a will, you are called a testator (male) or testatrix (female). A person who dies having made a valid will is said to have died ‘testate’. If you die testate, then all your possessions will be distributed in the way you set out in your will. It is the job of the executor or executors you named in your will to make sure this happens. There are legal limits as to how much of your property goes to which person, as set out in law in the Succession Act, 1965. An executor can be a beneficiary under the will. In other words, the executor can also inherit under the will.
After you die, somebody has to deal with your estate, by gathering together all your money and your possessions, paying any debts you owe and then distributing what is left to the people who are entitled to it. If you leave a will before you die, one or more of the executors you named in your will usually has to get legal permission from the Probate Office or the District Probate Registry for the area in which you lived at the time of death to do this. Permission comes in the form of a document called a Grant of Representation.
If you did not name any executors in your will or if the executors are unable or unwilling to apply for a Grant of Representation, documents called Letters of Administration (With Will) are issued. When your estate is distributed, the legal rights of your spouse/civil partner and children, if any, will be fulfilled first after any debts are paid before any other gifts are considered.
What happens if you die without a will or your will is invalid
A person who dies without a will is said to have died ‘intestate’. If you die intestate, this means your estate, or everything that you own, is distributed in accordance with the law by an administrator. To do this, the administrator needs permission in the form of a Grant of Representation. When a person dies without a will or when their will is invalid, this Grant is issued as Letters of Administration by the Probate Office or the District Probate Registry for the area in which the person lived at the time of death.
Distribution of your estate when you die intestate or have not made a valid will
The legal rules governing the distribution of your property apply:
- When you have not made a will
- When the will has been denied probate because it has not been made properly or a challenge to it has been successful
- When the will does not completely deal with all your possessions.
In these cases, after debts and expenses have been deducted, the estate is distributed in the following way.
If you are survived by:
- A spouse/civil partner but no children (or grandchildren): your spouse/civil partner get the entire estate.
- A spouse/civil partner and children: your spouse/civil partner gets two-thirds of your estate and the remaining one-third is divided equally among your children. If one of your children has died, that share goes to his/her children.
- Children, but no spouse/civil partner: your estate is divided equally among your children (or their children).
- Parents, but no spouse/civil partner or children: your estate is divided equally between your parents or given entirely to one parent if only one survives.
- Brothers and sisters only: your estate is shared equally among them, with the children of a deceased brother or sister taking his/her share.
- Nieces and nephews only: your estate is divided equally among those surviving.
- Other relatives only: your estate is divided equally between the nearest equal relationship.
- No relatives: your estate goes to the state.
The requirements of a valid will
It is possible to draw up a will yourself or you can hire a solicitor to help you.
For a will to be legally valid, the following rules apply:
- The will must be in writing
- You must be over 18 or have been or be married
- You must be of sound mind
- You must sign or mark the will or acknowledge the signature or mark in the presence of two witnesses.
- Your two witnesses must sign the will in your presence
- Your two witnesses cannot be people who will gain from your will and they must be present with you at the same time for their attestation to be valid. The witnesses’ spouses/civil partners also cannot gain from your will.
- Your witnesses must see you sign the will but they do not have to see what is written in it.
- The signature or mark must be at the end of the will.
These are all legal requirements and if any of them are not met, the will is not valid. If you want to change your will after you make it, you can add a codicil (amendment or change) to your will; this codicil must meet the same requirements as set out above.
The format of the will
You do not have to have your will in any set format. However, it is important that the will has the following:
- Your name and address
- A statement that says you revoke or disown all earlier wills or codicils, such as “I hereby revoke all former wills and testamentary instruments made by me and declare this to be my last will and testament”.
- A clause or section of your will that appoints one or more executors, or people who will carry out your wishes in your will after you die, and stating these executors’ names and addresses.
- A residuary clause, which is a section in your will that sets out how property not effectively dealt with in the will should be distributed. This is important because specific bequests, such as “I leave x.. to Sean Murphy” can fail (be considered invalid), and then revert to the residue to be decided by this residuary clause. Your residuary clause could say that anything not covered in your will would be a gift or legacy to someone, like “The remainder of my estate I leave to my daughter, Mary”.
- Your will should be dated and signed by you and your witnesses. Usually, these signatures are underneath a line in the will that states “Signed by the testator in the presence of us and by us in the presence of the testator”. This statement is called “an attestation clause”. An attestation clause is not a formal requirement of a valid will, but it is advisable to include it in your will as it constitutes evidence that your will has been validly executed.
What if the testator in unable to sign or make a mark?
If you are unable to sign your will due to ill-health or illiteracy, it is acceptable for you to sign your will by means of a mark.
If you are physically disabled to the extent that you are unable to sign or mark your will, it is possible for you to direct an agent or representative to sign your will for you. Your agent must sign the will in your presence and on your direction and your two witnesses must be present. You then adopt this signature as your own.
The sound mind requirement
In order to make a valid will, you must not only set out your wishes in a written and witnessed document, but you must also have, in the eyes of the law, the mental capacity to do so. This means you must make your will with “understanding and reason” and not be suffering from mental conditions such as delusion, insane suspicion or aversion.
It is your mental condition at the time you made your will is that legally relevant. If you suffer from any mental disorder, it is important that evidence is left with your will (for example, from a doctor) that proves you were mentally competent at the time you made the will. Otherwise, your will can be open to challenge.
Your will can also be challenged on the basis that you were acting under pressure or undue influence when you made it so it is important that you get independent legal advice and not use the services of a solicitor of any potential beneficiary of your will.
Changing or revoking your will
If you want to change your will, you and your witnesses must sign or initial the will in the margin of the page beside the changes. You can also change your will in the form of a memorandum or written note that is signed by you and your witnesses that refers clearly to the changes.
To change your will, you can also make a separate document, called a codicil, which is like an update added to the end of your will. This document, again signed by you and your witnesses, should set out clearly and accurately the changes you want to make to your will. These changes are then legally binding.
However, if you plan to make a lot of changes to your will, instead of adding a codicil, it might be easier to simply revoke or disown your current will and make a new one, using the same procedures.
It is always possible for you to revoke your will. This can only be challenged if your mental capacity when you revoked your will is called into question.
Your will shall be revoked automatically in certain situations:
- If you marry or enter into a civil partnership, your will shall be revoked, unless your will was made in contemplation of that marriage or civil partnership.
- If you make another will, the first will you made shall be revoked.
- If you draw up a written document that is executed in accordance with the requirements for a will, your first will shall be revoked.
- If you burn, tear or destroy your will, it will no longer be considered valid. Or, if you have someone else destroy it, your will shall be revoked, provided this was done in your presence, with your consent, and with the intention of revoking your will.
Legal rights of spouses, civil partners and children when there is a valid will
In general, you are free to dispose of your belongings or estate as you wish, but your will is subject to certain rights of spouses/civil partners and other more limited rights of children. These rights are set out below.
Rights of a spouse or civil partner
If you have left a will, and your spouse/civil partner has never renounced or given up his/her rights to your estate, and is not “unworthy to succeed” in legal terms, then that spouse/civil partner is entitled to what is called a “legal right share” of your estate. This legal right share is:
- One-half of your estate if you do not have children
- One-third of your estate if you do have children
Your spouse/civil partner does not have to go to court to get this share, as any executor is obliged to grant this share where applicable. You can also make a bequest in your will that increases your spouse’s/civil partner’s legal right share, although if you do not specify that this gift is meant to be in addition to his/her legal right share, the executor may consider it part of that share and not an extra element to it. Your spouse/civil partner can choose to take either the assets specified under the will or his/her legal right share. The executors must inform your spouse/civil partner in writing of his or her right to choose between these two options and your spouse/civil partner must exercise this right within 6 months of receipt of notification or within 12 months of the taking out of the Grant of Representation.
Renouncing or losing rights under a will
It is possible for a spouse/civil partner to renounce his/her rights to the legal right share. This can form part of an agreement prior to marriage/civil partnership, for example, in the case of a second marriage, or the spouse/civil partner may set aside his or her rights in order to favour any children. However, any such renunciation may be ignored in certain circumstances, for example, if there is evidence of undue influence or evidence that the spouse/civil partner did not understand what he/she was doing or did not have independent legal advice.
If a couple is separated, a renunciation of each other’s right to the legal right share is usually included in a separation agreement. Divorce or dissolution of a civil partnership, however, automatically ends succession rights.
Cohabiting partners have no automatic legal right to each other’s estates, although under the redress scheme for cohabiting couples introduced by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 a qualified cohabitant may apply for provision to be made from the estate of a deceased cohabitant. Cohabiting partners can make wills that favour each other. These wills, however, cannot cancel out the legal rights of a spouse/civil partner if someone is separated but not divorced or their civil partnership dissolved.
Being judged “unworthy to succeed” is relatively rare, and would arise, for example, if the surviving spouse/civil partner had murdered or committed certain other serious crimes against the deceased. It could also apply if the spouse/civil partner had deserted the deceased for at least two years before death.
Rights of children under a will
Unlike a spouse/civil partner, children do not have any absolute right to inherit their parent’s estate if the parent has made a will. Children born inside or outside marriage and adopted children all have the same rights and there are no age restrictions.
However, a child may make an application to court if he/she feels that he/she has not been adequately provided for. It is important to seek legal advice before making such an application. An application must be made within 6 months of the taking out of a Grant of Representation. The court then has to decide if the parent has failed in his/her duty to the child in accordance with the needs of that child. Each case is considered individually, but it is important to remember that the legal right share of the spouse cannot be infringed in order to give the child a greater share of the estate. It can, however, reduce the entitlement of a civil partner.
The family/shared home
The surviving spouse/civil partner may require that the family/shared home be given to him/her in satisfaction of his/her legal right share, although if the house is worth more than the legal right share, the spouse/civil partner may have to pay the difference into the deceased’s estate. A court may decide that this sum does not have to be paid if it would cause undue hardship to the spouse/civil partner or dependent children.
Giving away property in order to disinherit
If a court finds that the deceased person gave away property before he/she died with the intention of defeating the interest of or unfairly reducing the legal right share of a spouse/civil partner or child, a court order may be issued to the person who received the property, making that person a debtor of the estate, and requiring them to pay back an amount to the estate.
Gifts that fail
Remember that any legacy or gift in your will could fail for many reasons.
- If your will states that you are leaving an asset to someone and you no longer have the asset or the asset no longer exists, then the gift fails, or is in ademption.
- If you leave a gift to a person who is a witness to your will.
- If the gift is not clearly identified in your will or it does not conform to its description in the will.
- Your gift lapses, or no longer applies, if the beneficiary dies before you do. If this happens or if the beneficiary refuses to accept the gift, your gift goes back to your residuary clause, or if you do not have one a residuary clause, into intestacy. Your gift will not lapse, however, if the beneficiary is a child of yours who has died and you have other children, as the gift will then go to the surviving children.
How wills are interpreted
Most wills are not disputed, but if there is a disagreement, it must be settled in court. The court will give effect to the testator or will-maker’s wishes as expressed in the will. The testator’s wishes are derived or taken from a reading of the will as a whole, with words and phrases taken in their ordinary meaning unless they are technical words and it can be assumed the testator meant them to be taken in their technical meaning. Extrinsic evidence, or evidence outside the will, such as letters or notes that refer to the will in advance of its making, may be introduced to the court to explain more fully the testator’s intentions and to help ascertain the true meaning of the will. Where two interpretations of a provision in the will arise, the court will lean in favour of the interpretation that upholds that bequest.
Because wills can be disputed, it is important that you write your will in simple, straightforward language.
Status of wills as public documents
After probate has been taken out on a person’s will, that will then becomes a public document and a copy can be obtained by anyone from the Probate Office or relevant District Probate Registry. The Probate Office also sends copies of the will, the Grant of Representation and the Inland Revenue Affidavit to the Revenue Commissioners.
Joint bank accounts or joint ownership of property are valid ways of deciding the fate of your assets in your own lifetime, but making a will can eliminate most potential disputes.
Joint bank accounts
Where joint bank accounts are opened with a spouse/civil partner or child, it is presumed that one party will be fully entitled to the money in the account when the other party dies. Disputes can arise, however, if someone, perhaps an elderly person or a person with a physical disability, opens a joint bank account with a relative or friend so that the relative or friend can manage his or her finances for him or her. This is because the owner’s intention may or may not have been to benefit the relative or friend. A decision in such a case would depend on the intention of the people involved, the amount they each lodged into the account and the terms of their contract with the bank. It is advisable for people with joint accounts to make clear in their contract with their bank or in their will what their intentions are for the money in such accounts.
How to apply
A solicitor will be able to help you draft a will or you can write it yourself. If you are an executor seeking probate, you may make a personal application for a grant of probate to the Probate Office or to one of 14 District Probate Registry offices. You should go to the District Probate Registry Office in the area where the deceased lived at the date of death. If the deceased lived at the time of his or her death in Dublin, Meath, Kildare or Wicklow or lived outside Ireland, application for a grant of probate must be made to the Probate Office in Dublin.
Where to Apply
Personal Application Section
15/24 Phoenix Street North
Tel: +353 (0)1 8886179 or +353 (0)1 8886181
Power of Attorney
Power of Attorney is a legal device in Ireland that can be set up by a person (the Donor) during his/her life when he/she is in good mental health. It allows another specially appointed person (the Attorney) to take actions on the Donor’s behalf if he/she is absent, abroad or incapacitated through illness.
If someone in Ireland is mentally incapacitated (for example, because of illness, disability or a progressive degenerative illness), all of their assets and property are normally frozen and cannot be used by anyone else unless they are jointly owned or, someone has Power of Attorney to deal with their property or money. In a larger sense, Power of Attorney is just one of the legal arrangements that you can make during your lifetime, in the event you become incapacitated or unable to deal with your affairs.
Types of Power of Attorney
There are two types of Power of Attorney allowed under Irish law:
- Power of Attorney which gives either a specific or a general power and ceases as soon as the Donor becomes incapacitated
- Enduring Power of Attorney which takes effect on the incapacity of the donor
Both cease on the death of the Donor. However, it may be difficult to prove that the Donor is dead if his/her body cannot be found, for example, as in the case of a death by drowning. Once the body is found or the Donor is declared to be “believed dead” by a court (usually after seven years have passed), the Power of Attorney (if there was one) ends and their affairs are passed on in the normal way by will or under intestacy law.
A Power of Attorney can be specific (limited to a particular purpose, for example, sale of your house in your absence) or general (entitling the attorney to do almost everything that you yourself could do). For example, it may allow the Attorney to take a wide range of actions on the donor’s behalf in relation to property, business, and financial affairs. He/she may make payments from the specified accounts, make appropriate provision for any specified person’s needs, and make appropriate gifts to the donor’s relations or friends.
An Enduring Power of Attorney also allows the Attorney to make “personal care decisions” on the Donor’s behalf once he/she is no longer fully mentally capable of taking decisions him/herself. Personal care decisions may include deciding where and with whom the Donor will live, who he/she should see or not see and what training or rehabilitation he/she should get. However, if the Donor wants, he/she can specifically exclude any of these powers when setting up the Power of Attorney or can make the Attorney’s powers subject to any reasonable conditions and restrictions.
You can appoint anyone you wish to be your Attorney, including a spouse, family member, friend, colleague, etc.
How to create a power of attorney
A general power of attorney can be created when signed either by you or at your direction and in the presence of a witness.
The procedure for creating an enduring power of attorney is much more complex.
Creating an enduring power of attorney
Because the enduring power of attorney involves the transfer of considerable powers from you to another person, there are a number of legal safeguards to protect you from abuses. The procedure for executing the enduring power of attorney is complex and requires the involvement of a solicitor and a doctor. The enduring power can only come into effect when certain procedures have been gone through and the courts have a general supervisory role in the implementation of the power.
The document creating the power must be in a particular format and must include the following:
a statement by a doctor verifying that in his/her opinion you had the mental capacity at the time that the document was executed to understand the effect of creating the power
- a statement from you that you understood the effect of creating the power
- a statement from a solicitor that he/she is satisfied that you understood the effect of creating the power of attorney
- a statement from a solicitor that you were not acting under undue influence.
Certain people must be notified of the making of an EPA, including family members.
Who can be appointed?
An enduring power of attorney may be granted to individuals or trust corporations but may not be granted to the following people:
- people under the age of 18
- people convicted of offences involving fraud or dishonesty
- people disqualified under the Companies Acts
- an individual or trust corporation who owns a nursing home in which you live or an employee or agent of the owner, unless that person is also your spouse, child or sibling.
The EPA can only come into force when it has been registered. In order to register an EPA, the future attorney makes an application to the High Court once there is reason to believe that you are or are becoming mentally incapable. Before making this application, the attorney must notify you of his/her intention to do so. The attorney must have a medical certificate confirming that you are incapable of managing your affairs.
A notice of the attorney’s application must be served on you and on a number of other people.
The role of the court
The court has an extensive supervisory role in respect of the EPA. Among other things, the court has power to give directions about the management and disposal of your property. The court may confirm the revocation of a power of attorney if it is satisfied that you were mentally competent to revoke it. The court can order cancellation of the power where it is satisfied that:
- you are mentally capable and likely to remain so
- the attorney is unsuitable
- fraud or undue pressure was used to induce you to create the power.
Scope of Authority of an Enduring Power of Attorney
The EPA may give general authority to the attorney to do anything that the attorney might lawfully do or it may merely give authority to do specific acts on your behalf.
The attorney may make certain personal care decisions – these must be made in your best interests, must be in accordance with what you would have been likely to do and the attorney must consult family members and carers in making these decisions. A personal care decision is a decision concerning one or more of the following:
- where and with whom you should live
- whom you should see and not see
- what training and rehabilitation you should get
- your diet and dress
- inspection of your personal papers
- housing, social welfare and other benefits.
The list does not include health care decisions, although the borderline between personal care and health care decisions is not always clear. However, it seems clear that the attorney does not have the power to make a decision as to whether or not a person suffering from dementia should undergo surgery.
Termination of an Enduring Power of Attorney
There are various circumstances in which an EPA ceases to have effect, for example, if the attorney fails to fulfil certain conditions.
Once the EPA has been registered, you cannot revoke it unless the court approves the revocation, even if you are, for the time being, mentally capable.
Advance Care Directives
There are a number of different words and phrases used to describe advance care directives. In some countries, there is legislation which provides for the recognition and enforcement of such directives and in some cases provides for the way in which they should be made. There is no such legislation in Ireland.This does not necessarily mean that these advance care directives are not valid but it does mean that information and guidance from other jurisdictions may not apply and you should not rely on such information or guidance. In some countries there have been court cases where the validity of advance directives has been considered but again, there has been no such case in Ireland. An advance care directive, sometimes known as a ‘Living will’, is a statement about the type and extent of medical or surgical treatment you want in the future, on the assumption that you will not be able to make that decision at the relevant time.
An advance care directive may be valid and enforceable because by making such a statement, you may have withdrawn your consent to specific medical or surgical treatment. It is not possible to state with absolute certainty that such a directive would be enforced because this depends on exactly what it says and whether or not it addresses the precise circumstances you face.
In some countries it is possible to appoint someone else to make decisions on your behalf if you are not capable of making them yourself. In Ireland this power is granted by creating an Enduring Power of Attorney. An Enduring Power of Attorney however specifically does not allow for the making of health care decisions by another person. While you may suggest to your doctor or hospital that the wishes of certain people may be taken into account, you cannot give anyone else any legal right to make decisions about your health care. Neither can you ensure that the doctor/hospital will abide by their wishes.
What is an advance care directive?
There is no legislation on advance care directive in Ireland. In general it can be defined as a statement about the kind and extent of medical or surgical treatment you want in the future, on the assumption that you will not be able to make that decision at the relevant time. Sometimes the terms living will, advance statement, advance decision or advance refusal are used. Remember however, there are no precise definitions of these terms but they are all advance decisions about medical or surgical treatment. People usually make such directives in order to limit the treatment given in order not to prolong life. Some people however make them in order to state that they want all possible treatments to be provided. It is unlikely that such a directive would be enforceable as it does not take account of the likely success of the treatment or of the costs involved.
Given the fact there is no legislation addressing directives in Ireland, this doesn’t necessarily mean that they are not valid in Ireland but their status is unclear. There has been a court case in which it was suggested that properly made advance directives would be valid and enforceable but this was not the issue in the case and so there was no ruling. It does seem that an advance directive which is clear and specific may be regarded as giving or withholding consent to specific treatment when you were in a position to make an informed choice.
There is no doubt that an advance directive is not enforceable if it specifies doing something which is illegal. For example, an advance directive stating that you want to be given medication which will hasten your death would not be enforceable. Withdrawal of treatment is not the same as positive action to end life. A directive which specifies the kind of treatment you want is unlikely to be enforceable especially if it conflicts with the doctor’s clinical decision. A directive is unlikely to be considered valid if it relates to circumstances which clearly were not envisaged when it was drawn up.
Legislation was recently passed in the UK dealing with advance directives. The UK Mental Capacity Act 2005 uses the term advance decision. It provides that advance decisions made by mentally competent adults to refuse specified treatments may be valid if specific conditions are met. More stringent conditions are required for advance decisions to refuse life sustaining treatments.
In the UK, an attorney appointed under a Lasting Power of Attorney (similar to an Enduring Power of Attorney in Ireland) does have the power to make health care decisions on behalf of the person granting the power).
Family members and advance care directives
If a health care issue arises and the patient is incapable of making a decision, it is the practice to consult with next of kin. It is not clear what legal basis there is for this, as next of kin have no general right to make decisions on behalf of adults.
Medical ethics currently in force in Ireland state that consultation with next of kin is desirable if the patient is unable to make a decision or to communicate and provides for a second opinion if there is a difference of opinion between your family and the doctor.
Next of kin are (in order) spouses, children, parents, siblings. Partners have no legal status and may experience difficulties in seeing patients if family members object. This is the case whether you are in a heterosexual or a homosexual relationship.
Section 69(2) of the Medical Practitioners Act 1978 provides that the Irish Medical Council is obliged to provide guidance to the medical profession in Ireland regarding medical ethics. The Council have a Guide to Ethical Conduct and Behaviour.
Suicide and Assisted Suicide
You are entitled to refuse medical treatment but this does not mean that you may take positive measures to end your own life or another person’s life.
The Criminal Law (Suicide) Act 1993 sets out the law in relation to suicide. Suicide itself or an attempt to commit suicide is not a crime. However, it is a criminal offence to help another person to take measures to end their life.
It is a criminal offence to aid, abet, encourage or procure the suicide of another person. That crime is usually referred to as assisted suicide. The maximum penalty for assisted suicide is 14 years imprisonment. If you help someone to commit suicide you may be charged with murder, manslaughter or assisted suicide depending on the exact circumstances. Such a charge could arise if you help another person to end their life even if the other person is terminally ill or wants to end their life. This applies to medical professionals in the same way as to other people.
Pain killing drugs which may also shorten life may be administered if the intention is to deal with pain and not to end life.
Legal Arrangements for Incapacity
There may be many reasons why you are unable to deal with your affairs in life.
For example, you may be physically unable to collect your pension. You may be abroad for a time and not be able to look after your property. You may become mentally incapacitated and be legally incapable of carrying out certain transactions. You may acquire an illness or disability that restricts your ability to make objective decisions. If you become incapable of dealing with your affairs, for whatever reason, there are various legal arrangements you can make to have someone else do these things on your behalf. It is important for everyone to be aware of their options should a circumstance such as this arise.
The choices of legal arrangements open to you, depends on your precise circumstances. Some of the arrangements are very simple to make and have limited effect – for example, appointing an agent to collect your social welfare pension. Others are much more complex and require the help of legal and medical professionals – for example, executing an enduring power of attorney. It is advisable to take legal advice before entering into the more complex arrangements.
You must make all of these arrangements – with the exception of the Wards of Court procedure – while you are mentally competent. Some arrangements are only effective while you remain mentally competent; some, notably the trust, continue even if you become mentally incompetent, while others, specifically the enduring power of attorney, are designed for dealing with the situation that arises when you cease to be mentally competent. The Wards of Court procedure differs from all the others in that it may be imposed on you.
If you appoint another person to represent you in certain dealings with third parties, you are making an agency arrangement. You are called the principal and the person you appoint is called the agent or appointed representative. The most usual example is where a pensioner nominates someone to collect social welfare pension payments or other allowances from the post office.
Another example of an agency arrangement is where you appoint a friend or family member as an agent to manage your financial affairs, pay bills, insure the house, etc., while you are abroad for a period. You may appoint a professional to do these things and pay for the service – this is not an agency arrangement but a contract for services.
If you are suffering from physical incapacity, your bank may allow you to carry out a third party mandate. This is authorises your agent to perform certain functions, for example, to write cheques on your behalf.
You may only make an agency arrangement while you are mentally competent and the arrangement usually only lasts while you remain mentally competent. The arrangement does not have to be in writing unless the agent is required to sell property on your behalf. It is nevertheless advisable to put the arrangement in writing so that both you and the agent are clear about what is intended and what powers the agent has.
Agency arrangements for Social Welfare payments
The Department of Social Protection has the power under social welfare legislation to make payments to a third party acting on behalf of a social welfare recipient. The legal status of a social welfare agency relationship is different from the general agency relationship in that the social welfare agency may be put in place or may continue in operation if you become mentally incapable.
If an agent is appointed to collect the money, it is still your money and there is a legal duty on the agent to use it on your behalf and for your benefit. There is no formal mechanism however in place for ensuring that agents use the money on your behalf. Neither is there any requirement that the agent account for how the money was spent. The Department of Social Protection may end the agency arrangement if it has reason to believe the money isn’t being used for your benefit but it isn’t clear how they became aware of this.
There are two different types of social welfare agency arrangements:
Type 1 Agency
If you are getting your pension in the form of a Book of Payable Orders which you cash at the post office or bank and you are physically unable to cash the order or you move into a nursing home, an agent may be appointed to collect the money for you. You must nominate the agent in writing. There are no specific restrictions on the agent and who it may be. The agent may be a person in charge of your nursing home. You may cancel or revoke this arrangement at any time and you may appoint another agent or change the method of payment.
- You may appoint a temporary type 1 agent for a short period – usually not more than three weeks – if you are temporarily unable to collect the money.
- A temporary type 1 agency may be created when you sign the back of the payable order. You nominate the person to whom the money is to be paid and that person signs the order in the presence of a post office employee.
- If you get your payment by using your Social Services Card at a post office, an agent may be appointed only if you are suffering from a serious illness.
Type 2 Agency
A type 2 agency arises where a social welfare officer decides (usually as a result of representations from family members and medical practitioners) that you are incapable of acting and that an agent should be appointed. Before making such a decision, a social welfare officer will usually call to assess your circumstances and needs and medical certification of incapacity is needed. The agent nominated is often a family member or the matron of a nursing home or hospital.
A type 2 agency usually arises where there is some mental incapacity. The agent deals with all aspects of the social welfare payment.
In the case of a ward of court or an attorney appointed under an enduring power of attorney, the Department of Social Protection will make payments directly to the Committee of the Ward or to the Attorney by nominating the Committee or the Attorney as agent for the social welfare recipient.
Type 2 agents have the same legal duty to ensure the money is used for your benefit. They are also obliged to deal with other aspects of your social welfare payment. This includes notifying the Department of Social Protection of changes to your means if you are on a means tested payment, or informing them of changes in your dependants.
Power of Attorney
A power of attorney is a document in which you (the donor) authorise another person (the donee or attorney) to act for you in certain matters – on your behalf and in your name – in accordance with the terms set out in the document. So, for example, you may give a power of attorney to someone to buy or sell property. This may be a very wide power or it may have extensive conditions attached. A power of attorney can be special (limited to a particular purpose, for example, sale of your house in your absence) or general (entitling the attorney to do almost everything that you yourself could do, for example, to manage your business while you are abroad).
Unlike an agency arrangement, a power of attorney must always be in writing.
There are two kinds of power of attorney – a general or common law power of attorney and an enduring power of attorney. You may wish to execute both a general power of attorney and an enduring power of attorney – if so, they must be clearly separately executed in separate documents.
At common law, a power of attorney is automatically revoked when the donor becomes mentally incompetent, dies, marries or becomes bankrupt. An enduring power of attorney (EPA) is one that contains a statement by you that you intend the power to operate even if you become mentally incapable and that meets other legal requirements. In fact, the main advantage of the EPA is that it provides a means for you to organise your affairs in advance of and in spite of mental incapacity. See our previous piece on the Power of Attorney.
Property, including money assets, may be held in trust on behalf of another person or to achieve a particular purpose. A trust exits when a person (the trustee) holds the property of another (the settlor) for the benefit of named people. The beneficiaries may be the settlor him or herself or may be other people.
By creating a trust you can ensure that, should you subsequently become mentally incompetent; your affairs will be managed in a particular manner. The trust property continues to be administered by the trustee for your benefit without the necessity to have you made a ward of court.
A trust is also a useful tool if you have a child with a disability and you want to ensure that he/she will be cared for if you become incapable and after your death.
Trusts are legally complex and have tax implications so you should take legal and tax advice. There are different kinds of trusts of which the most usual are express trusts and discretionary trusts. Discretionary trusts are especially useful if you want to provide for an incapacitated child without affecting his/her entitlement to state benefits.
Wards of Court
If you become incapable of managing your affairs or are of unsound mind, you may be made a Ward of Court. There are a number of different procedures available depending on the precise circumstances. Usually, a petition is made to the High Court to have an inquiry into your capacity. The petition should be served on you and you can object to the inquiry or demand that it be held before a jury
Medical evidence must be provided from two medical doctors and a medical visitor (an independent doctor appointed by the court). If the court is satisfied that you are incapable, it may appoint a Committee of the Person (who may be one or more people) to deal with your personal affairs and a Committee of the Estate to deal with your business interests.
The Committee of the Person is similar to a guardian in that it has a duty to look after your physical welfare. People appointed to the Committee of the Person are usually relatives or friends. The Committee of the Estate has limited powers. Both Committees are subject to the supervision of the High Court.
Where to Apply
Registrar of the Ward of Courts
15/24 Phoenix Street North
Tel:+353 (0)1 888 6189
Dealing with the deceased’s estate
This section describes the process of administering a deceased person’s estate in Ireland.
Issues regarding the right of access to the deceased person’s estate, the rights of spouses/civil partners and family members and what happens if the deceased person has not made a will are all described in What happens the deceased’s estate.
If there is a will and an executor has been appointed, then the executor deals with the estate. This means that they make sure that the spouse/civil partner is aware of the right to a legal right share and distributes the estate in accordance with the will and the law.
If there is no will, or, if there is a will but there is no executor, an administrator is appointed – usually the next of kin or a solicitor.
In order to get authority to administer the estate a legal document called a Grant of Representation is required of which there are three types. If there is a will, then the executor needs to take out probate. If there is no will, or, if no executor has been appointed or the appointed person cannot act, an administrator may be appointed and he/she takes out a Letter of Administration (or a Letter of Administration with Will Annexed if there is a will).
The duties of the executor and administrator are broadly the same. If the estate is complex, it may be advisable to appoint a solicitor to do the job. He/she will be paid out of the estate and will usually charge around 3% of the value of the estate (or less on very large estates). If matters are fairly straightforward, the executor/administrator may decide to make a personal application.
Taking out probate
Taking out probate basically means having the Probate Office or the appropriate District Probate Registry certify that the will is valid and that all legal, financial and tax matters are in order so that the executor or administrator can be allowed to get on with the job of distributing the estate.
“Proving” the will is the process by which the Probate Office accepts that the will is valid and may be put into effect. The Office may carry out some enquiries, e.g., it may ask to see the witnesses to the will but this does not always happen.
Appointing an Administrator
If you don’t make a will, an administrator must be appointed. An administrator is also appointed where an executor is not named in the will, dies before the testator or is unwilling or unable to act.
The next of kin may apply for a grant of administration. Priority is given in the following order:
- the spouse,
- brother or sister,
- more distant relative.
If there is doubt about who is entitled to be the administrator, the issue will be decided by the Probate Registrar. Usually, an administrator is required to give an administration bond to the Probate Office – this is a sort of guarantee that you will carry out your duties properly.
Any person may oppose a Grant of Probate or a Letter of Administration. If you have an objection, you may lodge a caveat (objection) in the appropriate District Probate Registry or at the Probate Office.
A personal application
To make a personal application you must attend in person. The Probate Office has discretion to refuse to allow a personal applicant to be attended by an adviser. It may also refuse to allow an applicant to personally continue an application if it had been initiated by a solicitor. Where an application is made in connection with a case that has already been before the courts, that application must be made by a solicitor unless a special direction is received from the Probate Office. The Probate Office will help an executor/administrator who is acting personally.
A personal applicant for probate or for administration of the estate must take the following steps:
- Download the application form (see ‘Where to apply below) or obtain the form for personal applicants from the Probate Office or one of the 14 local Probate Offices.
- Fill out the form as best you can by entering details of bank, post office, building society accounts, property, assets, stocks, shares, debts, etc., of the deceased
- Return the completed form to the Probate Office. You will then get an acknowledgement and be given an appointment for a preliminary interview (more than one appointment may be necessary)
- Attend the interview in person and bring the following required items:
- a death certificate
- original will and codicil/s (if any)
- funeral bills/receipts
- statements up to the time of death of deposits in banks, post offices, credit unions, building societies, etc.
- details of other assets (for example, assurance policies, gratuities, superannuation schemes, stocks, shares, cash, prize bonds, etc.)
- details of any liabilities, debts (outstanding mortgages, loans, wages due to staff, etc. – You may have to put an advertisement in the papers asking creditors to send in their claims within a certain period.)
- details of any debts owing to the deceased’s estate (wages, holiday pay, court case settlements, etc.
- details about property (estimated value) together with title deeds or land certificates.
If an administrator, rather than an executor, is applying for a grant, a surety (guarantor) must attend the interview also so that the administration bond can be completed. The surety must reside in Ireland and must be worth the gross value of the estate.
- Sign the documents and swear the Executor’s oath. This is an oath swearing that he/she believes that the will in question is the last will of the deceased, that he/she is the person appointed as executor and that he/she will administer the will in accordance with the law. An administrator swears a similar oath.
- A completed Revenue Affidavit (Form CA24) is sworn in duplicate and you give it to the Probate Office. One copy as well as any other relevant information will be sent by the Probate Office to the Revenue Commissioners after Probate is granted.
- Pay the fee for probate
- Get permission from Probate Office to administer the estate.
If the Registrar of the Probate Office is satisfied that the will is valid and there are no caveats (objections) entered then probate will be granted (or Letter of Administration).
If there are problems (for example, if the original will cannot be found or there is doubt about signatures) then the Registrar may require sworn statements from witnesses. If there are no problems, the Grant of Probate or Administration is issued on the oath of the executor/administrator.
The Probate Office or the District Probate Office will make a standard form of grant unless there is a contentious aspect to the application. Where a contentious issue arises, the matter must be decided by the High Court judge in charge of probate matters although the High Court can direct that the matter be resolved by the Circuit Court in certain circumstances.
Duties of Executor/Administrators
Generally, you are obliged to distribute the assets as soon as possible after the death (within a year if possible – you may be sued by the beneficiaries if you do not distribute the estate within a year). This may not be possible if there are legal issues to be decided).
You are under a duty to preserve the assets of the deceased until they are distributed and to protect the assets from devaluation. For example, you should make sure that all assets required to be insured are insured for their market value.
You have power to:
- deal with the estate (for example, to sell it to pay debts or distribute amongst beneficiaries)
- represent the deceased in legal actions and to settle legal actions against the deceased’s estate.
- You must:
- gather together and protect all the deceased’s assets (money, shares, property, etc.) and find out their combined value
- call in any outstanding funds due (money owing to the deceased)
- pay any debts or taxes owed
- pay the funeral expenses
- make sure that the spouse/civil partner and children know about their legal right share
- make sure the entitled beneficiaries or next of kin get what they are entitled to, and that ownership of property is passed on correctly.
Social welfare recipients
If the deceased was receiving a social welfare payment, you must inform the Minister for Social Protection of the death before distributing the estate. This is to allow the Minister to reclaim any overpayment of pension that may have been made. The Department has 3 months to decide whether or not an overpayment was made. If you fail to do this, you may be made personally liable to repay the overpaid amounts.
You transfer land by way of an “Assent” to the beneficiary under the will or under the Succession Act. An assent must be in writing. If you are the beneficiary, it is not absolutely necessary for you to vest the property in yourself by way of an assent (as technically the property already vests in you). However, it is recommended practice that you do so in order to facilitate any future selling of that land.
It is the executor/administrator’s responsibility to pay the Probate Tax from the estate (if the deceased died before 6 December 2000).
The executor/administrator should deduct and pay the Capital Acquisitions Tax (CAT) due from the beneficiaries before passing on the bequest. You are also responsible for paying any income or capital gains tax on income from the estate during the administration period. The Revenue Commissioners can give you advice on this complex area and there is a comprehensive and well-laid-out explanatory booklet available.
If the deceased dies in debt
- If the deceased dies insolvent or there isn’t enough money to meet the bequests made, payments from the estate are prioritised in the following order:
- funeral, testamentary and administration expenses
- creditors who have security against the property of the deceased in the form of a mortgage, charge or lien (these are different ways of securing loans)
- rates and taxes due at the testator’s death, wages and salary for work done for the deceased within four months of death and sums payable by the estate in respect of contributions payable by the deceased in the twelve months prior to death under social welfare legislation (his/her own PRSI contributions as well as PRSI contributions for employees)
- all other creditors.
Where the deceased dies in debt, creditors can then only bring a claim against the estate of the deceased. Even if there isn’t enough money in the estate to meet all the debts, the relatives of the deceased are not personally responsible or liable for the deceased’s debts (unless, of course they had guaranteed them).
How to apply
This application form is also available from your District Probate Registry. Staff in the Registry will be happy to provide any assistance. The application should be returned to the Registry in the area where the deceased lived at the date of death.
It is not for use by those applying through a solicitor.
Where to Apply
Questions about taxation and the deceased person’s estate should be addressed to:
CATNational Taxpayer Information Unit
Tel: (01) 865 5000
Locall: 1890 201 104
Questions about probate issues should be addressed to your district Probate Office or:
Personal Application Section
15/24 Phoenix Street North
Tel:+353 (0)1 8886179 or +353 (0)1 8886181
Access to money after a death
When someone in Ireland dies, it is their personal representative who distributes their money and property according to the law.
Occasionally, difficulties can arise where a bereaved person may need to get access to some of the deceased person’s money to pay for funeral expenses. It may also transpire for example, that a dependent spouse/civil partner or children may need to get access for living expenses; at least until a social welfare payment is awarded. It is not easy to get immediate access to the deceased person’s money unless it is in a joint account.
There are a range of payments provided by both the Department of Social Protection and the Health Service Executive (HSE) that are available to help out families during this difficult time.
Money in the bank or building society
If money in the bank/building society is in the deceased’s name only, then you usually cannot get access to it until probate is taken out. If the amount of money is small, the financial institution may release it provided the personal representatives or the next of kin sign an indemnity form. In effect, this is a guarantee that the bank/building society will not be at a loss if there are other claims on the money.
If the account is held jointly with a person other than your spouse/civil partner (e.g. the deceased is a brother, partner or parent) talk to your bank or building society. They may need a statement from the Revenue Commissioners’ Capital Taxes Office. This will allow you to transfer money while any possible tax liability, such as Capital Acquisitions Tax (CAT), is being examined.
Spouses are not liable forCATon inheritances from each other. (When the legislation is passed, this will also apply to civil partners.) You should apply to the Capital Taxes Office of the Revenue Commissioners for a letter of clearance.
If you think the deceased person may have had a dormant bank account, you should contact the financial institution at which the account was held. If that financial institution no longer exists and you want to find out where to make your enquiry or claim, you should contact the Irish Bankers’ Federation/Irish Mortgage Association.
Post Office savings
For accounts in one name only:
- If the investor had left instructions on a ‘nomination form’, the proceeds of the savings deposit account or Savings Certificates (i.e the principal plus accrued interest) will be distributed according to those instructions. There are tax implications if the amount is more than 6,348.69 euro.
- If the investor had made a will, the proceeds will be distributed in accordance with the will.
- If there is no will, the usual rules for inheritance will apply.
- Whether there is a will or not, you will need to obtain probate or Letters of Administration from the High Court if the proceeds are more than 6,348.69 euro.
- If the amount involved is less than 6,348.69 euro, you will not have to wait to take out a grant of probate.
All you have to do is get a claim form from any post office and send it with the following:
- Death certificate
- Post Office deposit book (keep a record of the number)
- Original will or certified copy of the will (this will be returned by registered post)
- to the Post Office Savings Bank, Deceased Section. You will be sent a form of indemnity which you will have to sign before a Peace Commissioner or Commissioner for Oaths, or GP, clergyman or member of the Garda Síochána.
Credit union accounts
If the deceased had a credit union account and had completed a valid Nomination Form, when opening the account, nominating someone as next of kin, the proceeds of the account up to a maximum of €23,000 go to the person or persons nominated on the form. They do not form part of the deceased’s estate.
The balance of the account forms part of the deceased’s estate and is distributed in accordance with succession law.
If an insurance policy names you as the beneficiary, then you may claim it directly from the insurance company. You need a death certificate. If there is no named beneficiary, then the proceeds form part of the overall estate of the deceased and are distributed with the other assets.
Occupational and personal pensions
The rules governing occupational and personal pensions vary. If the deceased was a member of a pension scheme, you should contact the employer or former employer or the scheme administrators to find out if there is a pension for the spouse/civil partner and/or children. Self-employed people may have pension arrangements which involve some of the investments becoming part of the deceased’s estate.
Divorced people and those whose civil partnership has been dissolved may have access to some part of the pension scheme depending on whether or not a pension adjustment order was made at the time of the divorce/dissolution.
The Pensions Board have a series of leaflets on pension matters for scheme members.
CATNational Taxpayer Information Unit
Tel:(01) 865 5000
Locall: 1890 201 104
Irish Banking Federation
Tel: (01) 671 5311
Tel: (01) 705 7600
Locall: Callsave 1850 575 859
Fax: (01) 809 0900
28-30 Lower Mount Street
Tel: +353 (0)1 613 1900
Locall: 1890 656 565
Fax: +353 (0)1 631 8602