A Guide to Probate in the Republic of Ireland for Irish Assets in UK Estates

The need to extract a Irish Grant of Probate or Grant of Administration in the Republic of Ireland arises often in the context of the administration of UK Estates. This is unsurprising due to the close proximity of the two jurisdictions and the reality of migration both today and historically. In our experience, the most common Irish assets that arise in the administration of UK Estates are bank accounts / investments with Irish financial institutions and shares of Irish registered companies.

The experience of the Irish Probate Office in relation to the presentation of these applications has been a positive one. The Irish regime dictates that an Irish Solicitor be appointed in the majority of such applications and therefore the obligation falls to the Irish Solicitor to advise on the requirements for the Grant.

When is an Irish Grant of Probate/Grant of Administration required?

An Irish Grant of Probate/Grant of Administration is required once there is a substantial Irish asset such as a bank account over €25,000. Assets valued less than this amount may, depending on their nature and location, be amenable to being processed through a financial institution’s small estates procedure. The institution will release monies to those entitled upon receipt of the appropriate indemnity form being signed. The requirements of each financial institution will vary and therefore it is advisable to contact the relevant institution for confirmation.

When the Estate is being ascertained and valued within the context of the UK Estate administration the Irish based assets will be valued by making contact with the relevant financial institution or body. At this stage the requirements of the institution or body will be confirmed.

A Grant of Probate/Grant of Administration will be required if there are shares in an Irish registered company or real property within the State that need to be sold or transferred within the administration of the Estate.

Why is an Irish Probate Solicitor required to act?

The application process for Grants of Probate/Grant of Administration in Ireland involves two application routes, the Solicitor Application and the Personal Application.

Personal applications are suitable for only the most straightforward of applications. The Irish Probate Office has confirmed that in the following circumstances a solicitor must be appointed:

• Where the person entitled to apply for a Grant of Probate/ Grant of Administration is a Ward of the Court or a person of unsound mind
• Where the person entitled to apply is a minor ( a person under the age of 18 years)
• Where there are issues concerning the validity of a will
• Where there are issues among the next of kin regarding the estate
• Where the original will has been lost
• Where a beneficiary (other than the spouse of the deceased) of €20,000 or over of an estate is non-resident in this jurisdiction and the potential applicant for the Grant of Probate/ Grant of Administration is also non resident
• Where the deceased dies without making a will (intestate) and was domiciled outside of the Republic of Ireland and leaves assets within this jurisdiction and no Grant of Administration has been extracted in the place of domicile
• Where the deceased dies domiciled outside of the Republic of Ireland, leaving a will in a foreign language
• Where the deceased dies domiciled outside of the Republic of Ireland leaving a will which has not been proved in the law of domicile and a person other than the executor intends to apply for a Grant of Administration with Will Annexed within this jurisdiction
• Any other circumstances, which, in the opinion of the Probate Officer, require the assistance of a Solicitor. The decision of the Probate Officer in this regard is final.

The above is informed by the provisions of the Capital Acquisition Tax Consolidation Act, 2003 which provides for a secondary liability for Capital Acquisitions Tax in situations involving non-resident estates. Capital Acquisitions Tax (CAT) is Irish inheritance tax. The legislation provides that if there is an Irish resident personal representative they are automatically the agent of non-resident beneficiaries, if there is no such Irish resident personal representative then a practising solicitor within Ireland is required to take out the Grant of Probate/ Grant of Administration as agent and may have a secondary liability for any CAT liability of non-resident beneficiaries.  In order for the Irish solicitor to have a secondary liability for CAT the following circumstances must arise:

• There are non-resident beneficiaries
• The market value of the property taken by such non-resident beneficiaries exceeds €16,750
• The intended applicant/s for the Grant of Probate/ Grant of Administration are not resident in the State
• A CAT return would be required.

Thus, it can be seen that in the majority of UK Estates involving Irish assets a practising solicitor in Ireland will need to be appointed to extract the Grant of Probate/ Grant of Administration.

What information will the Irish Solicitor require?

Administration of Estates in Ireland involves provision of comprehensive information to the Revenue Commissioners regarding the financial affairs of the deceased. This information is provided in the form of a sworn affidavit (Inland Revenue Affidavit – CA24) and the details required for this affidavit dictates that extensive information will be needed by the Irish solicitor to complete the administration of the Estate.

The Inland Revenue Affidavit is essentially a snapshot as at date of death of the details of the deceased, the applicant for probate, the Estate details, assets / debts and the beneficiaries to include previous benefits and amount of inheritance to be received. This affidavit is filed in duplicate with the application for the Grant of Probate/ Grant of Administration. At a minimum the following information will be required by the Irish Solicitor to complete the Inland Revenue Affidavit and prepare the application for Grant of Probate/ Grant of Administration:

1. Full details of the Irish Estate including date of death valuations
2. Full details of all foreign Estate to include date of death valuations
3. Details of the deceased and copy death cert
4. Irish Personal Public Service (“PPS”) number for the deceased (for which the Irish Solicitor can apply)
5. Details of the beneficiaries to include prior benefits (gifts/inheritances) and Irish PPS numbers if inheriting over €16,750 (for which the Irish Solicitor can assist with applications)

In addition, the Irish solicitor will require a Court Registry sealed and certified copy of any UK Grant of Probate and Will or Grant of Administration as the case may be. Alternatively, if no Grant has been extracted an Affidavit of Laws may be required from the UK solicitor such as in the case of an Intestacy with no UK Grant of Administration being extracted.

What steps are involved in the Irish Probate application process?

Once full information is obtained by the Irish Solicitor the necessary PPS numbers can be obtained.

The Irish Solicitor will next make enquiries to confirm whether there have been any prior gifts or inheritances received by each beneficiary that would aggregate for the purposes of CAT.

The application for Grant of Probate/ Grant of Administration can be then be prepared; which will include the drafting of the Inland Revenue Affidavit, Oath of Executor/Administrator and, in the case of Intestacy or Testate application other than by an Executor, the Administration Bond. The papers will be sent to the UK Solicitor or client directly depending on the terms of instruction for signing and return. Once returned, the application is lodged with the Irish Probate Office in Dublin.

At each junction the Irish Solicitor must be mindful of taxation matters. A secondary liability arises for a solicitor agent in non-resident Grants of Probate/ Grant of Administration, and, this extends not just to CAT but also to Capital Gains Tax and Income Tax. If any returns are required these will generally be brought to the client’s attention and appropriate advice obtained.

What is the time frame for the extraction of the Irish Grant of Probate/Grant of Administration?

Unfortunately, there is a lengthy delay involved in the issue of a Grant of Probate/ Grant of Administration. Currently, the backlog in the Dublin Probate Office is approximately sixteen weeks from lodgement of papers. Therefore, the process can take a number of months in total.

If any query arises on the application, these are usually raised immediately, as UK Estates are generally assessed upon lodgement due to the similarities between in legal systems of the UK and Ireland.

It should be noted that if an application is queried, the entire application is returned for review and re-lodgement and the application then re-enters the queue from the date of re-lodgement.

What complications can arise when applying for Irish Probate?

The Probate Officer has confirmed that generally applications involving UK Estates are quite effective and there are not many difficulties encountered.

However, some issues that arise are;

• UK Grants and Wills being sealed and certified as true copies by Solicitors rather than the Court Registry, and,
• Divorces in the UK which the Irish Probate Officer does not have jurisdiction to recognise, for example, in the case of Intestacy of a UK Divorcee, it will be necessary to obtain a renunciation from the Ex-spouse of their entitlement to administer the Estate. If this is not possible there may be an option to obtain a limited Grant of Probate/ Grant of Administration to deal with movable property only within the State.

What happens when the Irish Grant of Probate/Grant of Administration issues?

Once the Grant of Probate/ Grant of Administration issues, the Irish Solicitor will generally collect the assets and ensure that all taxes and fees have been discharged.

From a CAT point of view there is an agreement between the two jurisdictions to prevent double taxation of inheritance where Inheritance Tax has been paid on worldwide assets in the UK. However, there may be a need to file a CAT return and even claim a credit for the inheritance tax paid in the UK. In addition, there are many differences between the two jurisdictions as regards CAT and Inheritance Tax such as the treatment of co-habitees who attract no special taxation status in Ireland and who are treated as strangers in blood for the taxation of gifts and inheritances.

What Irish Probate fees will be payable?

The issue of fees is a matter between each solicitor and client. There are a number of ways in which fees can be calculated such as based on a total percentage of the Estate to be dealt with, an hourly rate or a fixed fee estimated on the work involved in the matter. Our preference is the fixed fee which allows the legal personal representative and beneficiaries’ budget and plan and also assists the UK solicitor in obtaining instruction to proceed using the services of the Irish Solicitor.

Regardless of the basis for fees agreed, the professional fee will attract VAT at 23% and outlays will include Irish probate office fees which are a stamp duty payable on documents lodged.

Conclusion

As can be seen the process is a detailed and at times lengthy one. Therefore, when dealing with Irish assets in UK Estates it is crucial that the necessary professionals are instructed to advise of the exact requirements.

If you need any assistance with UK Estates involving Irish assets and are not familiar with the Irish Probate process, please contact us.