admin – Probate

Rights of the Beneficiaries

Rights of the Beneficiaries Who chooses the estate solicitor? In the administration of an estate, a solicitor is normally appointed by the person in charge of looking after the estate. When there’s a Will, this person is normally the Executor. If there is no Will, this person is normally the next of kin of the deceased and is known as the Administrator. How are the estate solicitor’s fees agreed upon? The Executor or Administrator will agree to the terms and conditions of the solicitor acting, including the fee arrangement. This may involve a fixed fee being agreed, an estimated fee being given, or an agreement of the basis for charges if it’s not possible to estimate the charges at the beginning. What entitlement have beneficiaries got when it comes to the estate solicitor’s fees? In addition to the Executor or Administrator agreeing on fees with the estate solicitor, the beneficiaries of the estate are entitled to know the fee arrangement in accordance with the section 68 of the Solicitors Acts. This ensures that any beneficiaries whose share is affected by the fees payable is aware of this so there are no surprises at the end. What protections are in place to make sure no additional fees have been charged? When the estate has been administered, the estate solicitor will prepare the estate accounts. This will provide the details of all assets and liabilities as at the date of death, any increase or decreases since through gains or payments (including the deduction of legal fees), and will record the finalised distribution. These accounts are reviewed and approved by the Executor or Administrator who will also receive the bill of costs from the estate solicitor. The Executor or Administrator can object if any unauthorised fees have been deducted. There are two avenues for recourse if there’s a dispute over legal fees; taxation of legal costs, or complaint to the Law Society. There are certain beneficiaries who are also entitled to a copy of the estate accounts. If there is a Will, this would be the beneficiaries due to inherit the residue of the estate. It there is no Will, all beneficiaries due to inherit are entitled to a copy under the Rules of Intestacy. Therefore, these beneficiaries will also be well placed to object to fees. How do you protect against undue delay in the administration of the estate? The Executor or Administrator is well placed to understand the stages of the administration and should be in regular communication with the estate solicitor. If information is not forthcoming or there is genuine cause for concern, the Executor or Administrator should seek a meeting with the estate solicitor. Should this not resolve matters, alternative legal advice should be considered. In this regard, the Law Society has strict guidelines on the procedure for the transfer of files among solicitors. What can beneficiaries do if there’s an undue delay in the administration of the estate? A beneficiary would be advised to send a final letter to the estate solicitor, in advance of appointing an independent legal advisor, requesting a full and comprehensive update in relation to the administration of the estate and requesting any information they require. Should this step be unsuccessful the beneficiary should seek independent legal advices as a beneficiary has to certain timeframes within which to claim assets from the estate of the deceased. In summary, there are several legal protections and safeguards that ensure media stories like the one above are a rare occurrence. Nonetheless, it’s always a good idea to be proactive in your role as the beneficiary in the administration of an estate and, if needed, seek independent legal advice.

Rights of the Beneficiaries Read More »

The Thoughtful Testator

Ensuring Smooth Administration of Your Will Lately, we have been asked by a number of clients how they can ensure that, after they are gone, the administration of their estate runs smoothly and no probate delays, arguments or confusion occurs. There are a number of steps that you, as the Testator, (the person making a will) can take to make the administration of your estate run smoothly, such as: 1. Make a valid Will with a Solicitor To ensure that your estate is administered in accordance with your wishes and without any legal complication, you should make a Will with the benefit of legal advice. We will keep records of your Will appointments which will offer protection for your Will and your wishes. 2. Keep your Will safe We will retain your original Will in our Will Safe and send you a copy of same. In the event that you wish to keep the original Will you should keep it in a safe and ensure that it does not get misplaced. It is important to note that in the event that a Will goes missing in the possession of the Testator, the law presumes that the Testator destroyed the Will with the intent to destroy it meaning it is no longer valid (unless there is evidence to rebut this presumption). 3. Collect previous Wills In the event that you have made previous Wills these will be taken up by us and destroyed by you or be retained by us with your current Will. 4. Review your Will regularly You should review your Will regularly to ensure that it is accurate in terms of your current wishes and takes account of any change of family or financial circumstances. You should be particularly careful that your Will is not revoked by any subsequent marriage as this will occur automatically unless your Will is made in contemplation of marriage. 5. Select suitable Executors You should select suitable executors that you trust to complete the administration of your estate in a timely manner and if choosing more than one you should choose Executors who get along and will not be in dispute. 6. Tell your Executors where your Will is held We never recommend that our clients reveal the contents of their Will to anyone as the document is a confidential and legally privileged one. Further, once the contents of the Will are made known to beneficiaries, clients often feel that they cannot change their mind even if they wish to. For this reason, we will give you bespoke J R we are Executor notification cards for you to give your Executors which will advise them of the location of the Will in the event of your passing. 7. Consider your funeral wishes If you have particular wishes as regarding your funeral these can be included in your Will. However, you should note that often Wills are not read in advance of funerals taking place and therefore you should alert your Executors or next of kin in relation to your wishes. 8. Keep clear records You should keep a clear record of your financial affairs with your personal effects. When you make your will with us we will give you a Pre-Meeting Questionnaire which will assist you in documenting your financial affairs. This record can be kept with your financial documents and also with your original Will in our Will Safe. These records will assist you Executors in confirming your assets and dealing with them in accordance with your wishes. 9. Consider what you want to happen your personal effects If you have particularly valuable items you should specifically refer to them in the Will to ensure they will pass to your nominated beneficiaries. Otherwise, if you have personal items, such as clothing, you may wish to direct that they should be given to a particular charity shop etc. This can assist your Executors when dealing with your estate. It is also possible to give your Executors the discretion to distribute items of sentimental value from your personal effects to friends and family that may request same. These are items of nominal value only. 10. Keep your affairs in order The role for your Executors will be to locate all of your assets and liabilities, gather in the assets and discharge any debts and funeral expenses and then distribute your estate to your chosen beneficiaries. In the event that you leave your affairs in a mess, the administration of your estate will be messy for your executors. Therefore, you should ensure that all title to the property is in order, all financial records, such as prize bonds, savings certs, share certificates, are located and there are no disputes in connection with your assets. You should also ensure that your tax affairs are in order. Your thoughtfulness will be appreciated by your executors as often executors find it difficult to act due to their grief. If you would like any information on making a Will of the administration of estates contact Probate on 01 234 3732 or email [email protected].

The Thoughtful Testator Read More »

grey area for wealth managers will sand epas

Risky Business for Wealth Managers – The Grey Area

Other Services News/Info / admin

Risky Business for Wealth Managers – The Grey Area The management of wealth is a role that often guarantees a certain demographic of the client, being in the 60 plus bracket. Therefore, it falls to the financial advisor or wealth manager to ensure they are fully familiar with legal difficulties that can arise for their clients within this age group. Without question these difficulties do not arise for every client, however, statically, they will arise for many. Often clients within this category can become vulnerable, whether by reason of diminishing capacity or by virtue of being more susceptible to financial pressure or coercion from persons close to them. These difficulties can be difficult to identify when they arise and therefore it is crucial that wealth managers and financial advisors are familiar with the legal issues arising. The statistics on dementia are staggering – over 4,000 people every year develop dementia that is at least 11 people every day. The reality is that people are living longer and age remains the primary risk factor for dementia. Therefore, we are now in an age where many are suffering a loss of capacity. How can wealth managers protect their client\’s assets if they lose their mental capacity? Provision can be made for a potential loss of capacity by putting in place an Enduring Power of Attorney. This document will have no legal effect until capacity is lost and it is registered with the High Court. In the event that no such provision is made the only other option is for the person to be declared as a Ward of Court and the High Court to appoint a Committee to look after their affairs. The Grey Area – Risky Business for Wealth Managers Thus, the position can be somewhat black and white when there is capacity and when capacity is lost. The difficulties arise within, what we refer to as, the grey area. This is the point where capacity has started to diminish but is not yet lost. Whilst in the grey area, the client will still go about their business. In fact, it is very common for people suffering from diminishing capacity to attempt to hide the fact that they are having difficulties with memory etc. Thus, it can be difficult to spot when clients are suffering from diminishing capacity. It is vital that wealth managers and financial advisors are proactive in reviewing client\’s capacity. The relevant test is a functional one, meaning that the client\’s capacity should be assessed at the point in time in which they are proposing to make a decision and in light of the issue or decision they are attempting to decide. Medical evidence can be sought to assist in the assessment of capacity. Wealth managers and financial advisors owe a duty to their clients to ensure that instructions will not be taken other than from a client with capacity. Any decisions made without capacity will be voidable. Even when a client has the capacity to make a decision, it is essential to ensure that the client is not being unduly influenced by another or coerced into making such decision. In this regard, it had been established by the courts that financial institutions/advisors who act on instructions, in circumstances where the client was clearly under the undue influence of another, will be found liable for the misappropriated funds as a result of such decisions. Therefore, the grey area brings with it a substantial risk for wealth managers and financial advisors. The protection of the client, advisor and organisation requires a full understanding of these issues. If you would like more information or assistance to navigate the grey area and help you protect your clients talk to us first and contact Probate on 01 234 3732 or via email at [email protected].

Risky Business for Wealth Managers – The Grey Area Read More »

wealth managers enduring power of attorney and wills for clients

Wealth Managers – Protecting The Client’s Wishes

Other Services News/Info / admin

Wealth Managers – Trusted Advisors I’ve heard it said that wealth managers are primarily relationship managers and this doesn’t surprise me in the least, People buy people. All private client advisors rely on trust. If your client does not have trust in you, they will worry unduly and ultimately the relationship between client and advisor will break down. When clients entrust the management of their wealth to an advisor, they trust them with the security they have in place for their family and loved ones. There are few times in life that clients place such a vast amount of responsibility with one advisor. Another example is when a client makes a Will; they place their entire estate in the hands of their legal advisor with trust that they will put provisions in place to make their wishes effective. How are wealth managers, relationship managers, building trust? One method is to take a holistic approach to wealth management, to look at the full spectrum of needs of the client and facilitate them to put measures in place to deal with each need. Increasing wealth managers are encouraging clients to take a comprehensive view of their wealth management to include succession of wealth and indeed to make provisions for devastating life events, such as a loss of capacity. This involves wealth managers facilitating clients to become educated in the areas of Wills and Enduring Powers of Attorney and advising them of the importance of same. These conversations between client and advisor are protecting the wealth management structures already in place and insulating them from sudden liquidation. Clients are often surprised to learn that in the event of a loss of capacity, with no client Enduring Power of Attorney in place, the default position is to have the person declared as a Ward of Court and liquidate their assets and have them lodged with the court. This can result in a total frustration of the scheme of wealth management in place and indeed the wishes of the client and their next of kin. Thus, a loss of capacity can often mean a loss of client to the wealth manager and can be frustrating to the advisor in whom such trust has been placed. Wealth managers are trusted by clients with whom they have often lifelong relationships with. Trusted advisors must consider long-term protection of their clients and facilitate clients to protect against loss of capacity and provide for the succession of wealth. If you are a wealth manager or financial advisor and would like to offer your clients a more holistic and protective service contact Probate on 01 234 3732 or via email at [email protected] and talk to us first about how we can facilitate the protection of your clients and their wishes.

Wealth Managers – Protecting The Client’s Wishes Read More »

TRUE OR FALSE? 10 ENDURING POWER OF ATTORNEY MYTHS EXPLAINED

Other Services News/Info / admin

TRUE OR FALSE – 10 ENDURING POWER OF ATTORNEY MYTHS EXPLAINED A fear that a lot of people have, but don’t wish to speak about, is the fear of losing their mental capacity and what happens to their assets and personal care decisions once this happens and they cannot make decisions for themselves. This is where an Enduring Power of Attorney comes into play. It is a quick and simple way to prepare for a time in future where you may need the help of somebody else to make your decisions for you, the great thing about the Enduring Power of Attorney document is that you set out how you would like certain situations and decisions to be handled, meaning although, at the time you lose you mental capacity and cannot make your own decisions, you effectively still maintain control of your affairs. Many people don’t understand fully how this document works and its benefits, this is why we, at Probate.ie, have put together this list of myths and have cleared up some of misconceptions and confirmed some of the facts surrounding and Enduring Power of Attorney, so that you can confidently set one up for yourself. See also: 10 Making a Will Myths Explained 7 Irish Probate Myths Explained 1. You don’t need an Enduring Power of Attorney if you have a Power of Attorney FALSE… …there are important differences between and Enduring Power of Attorney and a Power of Attorney. A Power of Attorney is a legal document with which you grant a person the power to act on your behalf in relation to certain elements of a transaction and usually is time limited and limited to making specific decisions on your behalf. For example, giving somebody the power to sign a contract on your behalf, this Power of Attorney will cease to have effect once should you lose your mental capacity, it is the Enduring Power of Attorney that will take effect from that point onwards. An Enduring Power of Attorney, on the other hand, is a document that gives somebody the power to make certain decisions for you and manage your affairs, usually financial and personal care affairs when you no longer have the mental capacity to manage those affairs yourself. It is in place for as long as you have lost your mental capacity to make your own decisions. It is for this reason that an Enduring Power of Attorney is an important document that should not be mistaken for a Power of Attorney document. 2. The Enduring Power of Attorney has no effect until it is registered TRUE… …this is true, the Enduring Power of Attorney it is a ‘just in case’ document and has no legal effect until registration. When a person loses their capacity, the document must be registered with the High Court to be effective. It is advisable to speak with a solicitor about how to do this should you need to activate an Enduring Power of Attorney. 3. An Enduring Power of Attorney can cover financial and personal care decisions TRUE… …this document can cover a person’s financial and personal care decisions. However, it is up to the person to choose what power they give the appointed person in their Enduring Power of Attorney. A person may choose to only deal with financial decision and or personal care decisions in an EPA. 4. You can place restrictions on your attorneys on what they can and can’t do TRUE… You can place restrictions on your attorney’s decision making abilities if you wish. However, you should ensure that these restrictions are not so restrictive that they frustrate the usefulness of the EPA. 5. You get to choose who will be your attorney(s) TRUE… …you can choose anybody you like to act as your attorney when making your Enduring Power of Attorney. Usually people would choose their spouse/partner/child/children or family member to look after their affairs, a person you can trust to take care of your affairs as you wish. You can also choose the level of control you give your chosen Attorneys. 6. If you appoint more than one attorney they have to agree on all decisions FALSE… …if you appoint more than one attorney to act on your behalf, you must make a decision about how they make decisions together. You must decide if they can act independently (referred to as acting jointly and severely) or if they have to make decisions together (known as acting jointly). This is an important decision because it could affect the outcome of future decisions that are made on your behalf. If you choose for your attorneys to act jointly and make their decisions together, if your attorneys can’t agree the decision won’t be made, if they can’t work together then the Enduring Power of Attorney falls apart. Also, if one of your attorneys dies or can no longer act then the Enduring Power of Attorney is no longer valid unless you have appointed substitute attorneys to step in in this case. Despite these limitations, jointly appointed attorneys create an important safeguard as consensus is required. If they act independently from each other this can allow more flexibility, decisions can be made quickly and urgent decisions can be made straight away for you. Also, if one of the attorneys dies or cannot act any longer, you do not need to have deputy attorneys to step in, the Enduring Power of Attorney will continue as normal. 7. An EPA can cover medical decisions FALSE… …this is a straight forward answer, No, medical decisions are currently outside the scope of an EPA. 8. You have to notify next of kin that you made an EPA TRUE… …when you make an Enduring Power of Attorney, you are legally required to notify 2 people, other than the Attorneys you have chosen to take care of your affairs. The law determines that your nearest next of kin along with another relative must be notified that you have made the

TRUE OR FALSE? 10 ENDURING POWER OF ATTORNEY MYTHS EXPLAINED Read More »

TRUE OR FALSE – 10 MAKING A WILL MYTHS EXPLAINED

Wills News/Info / admin

TRUE OR FALSE – 10 MAKING A WILL MYTHS EXPLAINED Many people are put off by the thought of making a will for a number of reasons; it’s a sensitive issue which forces people to make decisions and think about a scenario that they would prefer not to think about, they don’t know where to start and who leave what to, they are intimidated by making appointments with a solicitor or believe it can be expensive or they assume that their spouse/children or other close loved ones will automatically inherit everything from them. Making a will is a very straightforward process and can be completed in one appointment with a solicitor at a more reasonable price than what you might expect. Yes, some important decisions need to be made, but the alternative (passing away without a will) can create a stressful situation for loved ones you leave behind. This is why we, at Probate.ie, have put together this myth-busting guide to making a will in Ireland, so that you can approach the subject with confidence and ease. See also: 7 Irish Probate Myths Explained 10 Enduring Power of Attorney Myths Explained 1. You should have a will in every country in which you own property TRUE… …many people who own properties at home and abroad believe that one will (usually a will in their home country) is sufficient to ensure that all their wishes are met and their property abroad can be passed on smoothly. This is not the case. It is best practice for a person to also have a will in the country in which their foreign property is located, as well as a will in their home country, as each country will have their own legal system and taxation rules. It is advisable to contact a solicitor in the country in which the property is located to speak with them about what needs to be in place for the smooth administration of that part of a person’s estate. 2. You need to appoint more than one executor in your will FALSE… …an executor is a person appointed by the deceased to deal with their estate when they have passed away. Technically, there is no limit to the number of executors you appoint in your will, but from a practical point of view having too many executors can cause delays in administrating an estate. In addition, there are procedural difficulties in extracting a Grant of Probate by more than three executors. In reality, you do not need more than one executor to administer your estate however, most people will appoint two executors to offset any risk of one executor predeceasing you or being unable to act when the time comes. 3. Your will has no effect until your death TRUE… …this is a simple straightforward answer of, yes, your will takes effect only on your death. 4. You can change your will as often as you like TRUE… …once you make a will, it is not set in stone until you pass away. Anytime before death a person can change their will. In cases where a person has lost the mental capacity to make their own decisions, they may not be able to change their will. A person can change their will buy either simply making a new one and destroying the old one or by adding an extension onto their will, this extension is called a \’codicil\’. A codicil is useful when a person wants to add, amend or remove a part of their original will without starting all over again with a new one. It is advisable to contact a solicitor if you choose to change your will, as if not changed correctly it may not be valid at the time of death and your wishes may not be carried out as planned. 5. You need to change your will if you buy a new car or house FALSE… …a common misconception is that when a person buys a new car or changes property and buys a new house that they have to update their will. This is not the case as your will can be drafted in such a way to cover whatever house or car you own at time of death. However, you need to check the manner in which your Will is drafted. In addition, you should review your will from time to time in line with changes in financial affairs or family circumstances. 6. Children cannot take inheritance until they reach 18 years of age TRUE… …when a child (under the age of 18) inherits from a will, that child cannot take their inheritance until they come of age. This is why people would appoint trustees in their wills. A trustee is tasked with looking after inheritance for a child until they become of age (at least 18). Another alternative is that their parents are authorised to accept the inheritance for them and use it for the child’s health needs or education, whatever the case may be. The most suitable option will depend on the amount of inheritance the child is to receive. 7. If you have no will the State or Government will get everything FALSE… …the state/government is not entitled to inherit everything from you. If a personal dies without a will, then they are said to die ‘intestate’. There are certain rules for who inherits when a person dies intestate. These rules (rules of intestacy) are set out in the Successions Act 1965. If you have no will everything you leave will be distributed under the rules of intestacy. The problem here is that this may go against your wishes and a loved one that you would want to inherit from you may not receive anything after your death. This is why it is so important to take the time to make a will and ensure your loved ones are looked after once you have passed. 8. Your will is rendered useless if you marry after it has

TRUE OR FALSE – 10 MAKING A WILL MYTHS EXPLAINED Read More »

7 IRISH PROBATE MYTHS EXPLAINED

Probate News/Info / admin

TRUE OR FALSE – 7 IRISH PROBATE MYTHS EXPLAINED When it comes to Irish probate, like with many areas of Irish law, there are many myths, speculations and uncertainties out there amongst people which can cause a lot of confusion, expectations and fear of the Irish probate process. When the time comes for a person to need to understand the Irish probate process after the death of a loved one, these uncertainties and confusion are the last thing a person needs. That’s why we, at Probate.ie, have put together this myth busting guide to Irish Probate to confirm the true theories for you and debunk the false misconceptions people in Ireland have about the Probate process, so that when you need it, you can feel confident you know how to approach this subject. See also: 10 Making a Will Myths Explained 10 Enduring Power of Attorney Myths Explained 1. You need a solicitor to apply for probate FALSE… …you can make a personal application to the Probate Office providing it is a suitable case. The Irish Probate Office will assist with personal applications but cannot provide legal or taxation advices, this is why most people would turn to a solicitor to ensure that the process is taken care of in an effective and efficient manner. You want to make sure that when choosing a solicitor to help you with your application that you ask about their processes. We know from experience that delays in the Probate office can be stressful for all involved – this is something that can be overcome though with the right processes in place. 2. If more than one executor is appointed they all have to act FALSE… …an executor can choose whether they want to act or not. If they choose to act, they will move through the Irish probate process and assist in administering the deceased’s estate as they wished. An executor of a will can reserve their rights to act or renounce their entitlement to act. Once an executor has decided to act on behalf of the deceased and then they cannot act any longer a court order is needed to remove the executor of the will. It is important that a person who is thinking about renouncing their entitlement to act seek legal advice as to the consequences for the estate and who is next in line to deal with the deceased’s estate. 3. All executors get paid remuneration for acting FALSE… …this is solely dependent on the wishes set down in the will. If a person puts a clause in their will that entitles the executors to paid remuneration for administering the will, then yes, they will get paid for this. In most cases through, this is not the case, but for those who choose to ‘hire’ professional executors to carry out their wishes from their will, the professional executors are paid remuneration providing a suitable effective charging clause has been included in the will 4. A will becomes a document of public record once a Grant of Probate issues TRUE… …one a grant of probate is issued, copies of the grant of probate and the will are kept on record by the Irish probate office. The Irish probate office hold records for grants that have been issued within the past 20 year. A person can access the grant of probate and will through the Probate Office by paying the appropriate fee and completing the necessary paperwork. The records are kept at the National Archives and may be inspected in the Reading Rooms of the National Archives which is located on Bishop Street in Dublin 8. 5. After someone passes away there must be a reading of their will FALSE… …the first image that comes to mind is one out of a movie, where a stern man/woman arrives at the house with a briefcase and a sheet of paper to do the official will reading – this rarely, if ever happens in Ireland and is one of the most common misconceptions. There is no legal requirement to have a will reading. When somebody passes away and leaves a will behind to ensure their wishes are met, the appointed executors should know where to find the will and start the process of applying for a grant of probate and then, once the grant issues, proceed to administer the estate as laid out in the will. 6. All next of kin are entitled to a copy of the will after death FALSE… …the only person entitled to see the will is the executor of the will. If a non-executor wants to see the will, they can ask the executor if they know them, to see the will. For beneficiaries listed in the will, although they are not entitled to see a copy of the will, it is common practice for an extract of the will relating to a beneficiary to be provided to them so that they are aware of what inheritance they are going to receive. 7. If all I leave is a family home, I don’t need a will TRUE… …a grant of probate is not always needed when a loved one passes away. In cases where all that is left in the estate of a deceased person is the family home and that family home is held in joint names and joint tenants, the property will automatically pass to the surviving tenant of the property. We dedicated Probate Team have a wealth of experience in Irish probate matters, for a confidential discussion please feel free to call Probate and talk to us first on01 234 3732 or email, [email protected].

7 IRISH PROBATE MYTHS EXPLAINED Read More »

Children and Parents Wills – Children’s Rights Under The Succession Act 1965 – Possible future changes to law

Probate News/Info, Wills News/Info / admin

Children and Parents Wills – Children’s Rights Under The Succession Act 1965 – Possible future changes to law Inheritance is not always a given, many people expect that because the deceased is their parent, partner, spouse, brother, sister etc. that they are entitled to inherit from them when they pass away. This is especially true in the case of children, who expect to inherit from their parents when they pass away. This is not always the case. In some cases, a parent may decide to leave a child out of their will leaving the child with no inheritance. This is where S117 of The Succession Act 1965 comes into play What is S117 of The Succession Act 1965? Up to 1965 a person could do what they pleased with their estate after their death, regardless of their spouse or children’s circumstances and could do this by making a will. In 1965, this law changed and s117 of the Succession Act 1965 was introduced. Section 117 allows a child apply to court to challenge the will of their parent and claim that the parent has not provided for them under their will or otherwise in accordance with the parent’s moral obligation to do so in light of the parents means. Currently, an application to the court can only be made can only be made in cases where the parent has made a will. Under s117 of the Succession Act 1965, in order for the child to successfully contest their parent’s will, they must establish a need for provision to be made for them. When making a decision on such cases, the court will take account of the full circumstances of the child and parent. Children’s rights to inherit where a parent has died without a will S117 of the Succession Act 1965 states that where a person dies without a will (referred to as having died intestate) the surviving spouse would be entitled to two-thirds of the estate (or the entire estate if there were no children) and any surviving children would be entitled to a fixed one-third of the estate equally between them (or the entire estate if there was no surviving spouse). Suggested Changes to the Succession Act 1965 for children whose parents have made a will. Recently the Law Reforms Commission (LRC) released a report which outlined recommendations for change in the area of s117 of the Succession Act 1965. These recommendations have no force of law at the moment. They are recommendations regarding a future possible change in the law. Thus, s117 in its current state continues to apply. Some suggestions within this report have become the centre of controversy and scrutiny as they suggest that children can now be cut out of parents wills and may make it more difficult for a child to challenge a parent’s will. Some of the controversial recommended changes are as follows: Moral Duty vs Proper provision The LRC have recommended a change in the applicable s. 117 test from the parent fulfilling their moral duty to to the test of whether the parent has made proper provision for their child. They recommend that in cases where a child challenges a parents’ will under s. 117, there would be a presumption that if the once a child is over 18 (or over 23, if in full time education) that it would be seen that the parent has made proper provision for the child. This presumption can only be overcome if the child can prove that: 1. They have a particular financial need due to their health or decision making capacity 2. The estate contains an object of particular sentimental value to them 3. They have missed employment opportunities due to providing care for the parent. How would this recommendation affect a child’s ability to challenge a parent’s will? Since the Succession Act was brought into effect in 1965 there have been many cases under s117 of the Act which allowed the courts to determine a case by reviewing factors such as whether the parent provided an education to the child, for example. This recommended change of proper provision could have a great impact on a person’s ability to challenge their parents will under s. 117 if they are over 18 or over 23 (in full time education), unless they can prove point 1, 2, or 3 above. Does this mean that parents can now cut children out of their wills? Under the existing s117 there is no obligation for a parent to leave a particular share to a child. S117 merely gives a child the entitlement to apply to the court for provision to be made for them in the event that they can show that their parent failed in their moral obligation to provide for them, in accordance with their means, and that the child had a need for provision to be made. The reality is that the uncertainty surrounding the existing s117 results in parents being fearful to leave children out of their will as they fear litigation will follow and the costs will be paid from their estate and reduce the amount left in their estate under their will for their chosen beneficiaries. Is there a loop hole? In summary, the law has not changed, but if these recommendations come into effect, it has been suggested in the media that there may be a loop hole in that children could claim a farm or large asset is an object of sentimental value. It is simply too early to comment on this as these are recommendations only and essentially the law would have to be in place and interpreted by the court with the assistance of the facts of a case before them. Suggested changes to account for children whose parents die without a will At present a child cannot bring a case to court to contest what they have inherited if their parent died without a will. It has been suggested that a provision should be made

Children and Parents Wills – Children’s Rights Under The Succession Act 1965 – Possible future changes to law Read More »

Tracey Solicitor learn how to minimise Irish Probate delays

Lean Irish Probate Machine

Probate News/Info / admin

Lean Irish Probate Machine Recently our probate clients and our solicitors team have become increasingly concerned and frustrated with the delays encountered in the Irish Probate Office. Delays in the Irish Probate Office As of January last our team were advised that the backlog for the issue of a Grant or Probate / Administration was 26 weeks from the date the papers were lodged and accepted by the Probate Office. Previously, in December last the delays had been 16 weeks. We understand that the current backlog in the Irish Probate Office arises due to staff shortages. The matter is under review and recently the Court service invited submissions on the Probate Office for the purpose of a full review of the service. We learn how to minimise Irish Probate delays The reality is that the backlog in the Probate Office is outside of the control of all probate solicitors and clients. The only steps that can be taken are to ensure that the application is prepared promptly and comprehensively to ensure that no queries arise once it is submitted for the first time. In the event that a probate application is presented and a query arises, the query has to be dealt with and the papers re-lodged. This will result in further delays and will also result in a penalty fee of €40 for each re-submission. In order to ensure that our clients encounter no delays, other than the delays experienced in the Probate Office, our probate team have all completed LEAN training to implement streamlined systems and processes. This training has resulted in the implementation of standard business operations and work process which allow us complete our probate work more efficiently. In carrying out our LEAN training and implementing system changes, we have considered all steps that are taken at each stage of the probate process and broken them into work steps that are streamlined and completed easily when the time arises on any particular file. This investment in our training and systems enables us to complete our work promptly for our probate clients and allows us focus on our client needs rather than the Irish Probate Office delays. We measure our performance by constantly tracking client satisfaction and file completion timeframes to make sure that we maintain the quickest turnaround time possible for our Irish Probate clients. In a system of delays it is essential that you can count on your solicitor to act promptly upon your instructions. If you would like to talk to us about the LEAN operations of our probate systems please do not hesitate to contact us on 01 234 3732.

Lean Irish Probate Machine Read More »

ward of court recovers and regains mental capacity

What Happens if a Ward of Court Recovers?

Other Services News/Info / admin

What Happens if a Ward of Court Recovers? Often we receive queries from clients worried about a family member who appears to be losing their abilities to manage their own affairs due to illness, such as dementia. This loss of capacity is very difficult to deal with emotionally and it is heart breaking to watch a loved one slip away from us. It is also very difficult in practical terms, particularly when dealing with accessing bank accounts or dealing with property. Unless there is an Enduring Power of Attorney in place the only option for our clients is to apply to the High Court to have their family member declared as a Ward of Court and have a committee appointed to deal with their affairs. What is the Committee? The committee is usually made up of family members and are appointed by the Court. The Committee appointed only has the power to do what the Court authorise them to do. In cases where there are disputes among the family members, a Court official, called the General Solicitor, can be appointed. What happens if a Ward of Court can now manage their own affairs? Although there is provision for a person to be discharged from wardship, should they regain capacity to manage their affairs; this tends not to happen in the instance of dementia or other progressive conditions of cognitive impairment. Should a Ward of Court regain their mental capacity and take care of their own affairs, an application can be made to the Registrar of Wards of Court by the Ward or their solicitor. In order to be discharged from being Ward of Court, medical evidence supporting the claim that the Ward has regained their ability to manage their own affairs needs to be presented with the application. Importance of Ward of Court Procedure Although it can be perceived as a lengthy and restrictive process, for some people out there, the Ward of Court procedure can be lifesaving! Recently, the Irish Times reported an interesting case came before the High Court involving a lady in her fifties suffering from a brain tumour. Judge Kelly had made an order temporarily declaring the lady a ward of court after she refused surgery to remove the tumour and then the Judge permitting the surgery to take place. Following surgery and recovery, Judge Kelly was presented with a box of chocolates by the lady as she thanked him for his actions. The Court noted that the lady had now regained capacity to manage her own affairs and the previous orders were discharged and the wardship enquiry not proceeded with further. The importance of the Wards of Court procedure cannot be overstated; it is a valuable tool for the protection of vulnerable people. If you are concerned about a loved one, or would like more information on the Ward of Court procedure, do feel free to contact us, Solicitor, on 01 2343732 or email [email protected] for more information or for a confidential chat about

What Happens if a Ward of Court Recovers? Read More »