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Changing Solicitors for Probate – Transferring Files Between Solicitors Think of it like reading a book, if you like the author, the style of his/her writing and language and how easy it is to follow what the author is writing about then you will continue reading, if you do not then you will most likely put down that book and find another one to read. The same can be said about probate services you avail of from probate solicitors, whether it be making a will, enduring power of attorney or dealing with Probate matters from grant of probate, it is essential that you are comfortable with how your probate solicitor communicated with you and that you fully understand the probate process as you move through it. Lately, we have received a number of queries from concern people asking us how easy it is for an executor of a will to change from one probate solicitor to another when they need to move through the probate process. This is often referred to as transferring files between. How can I transfer files between solicitors to change probate solicitors? It is, in fact, a relatively easy procedure to transfer files between solicitors and change from one probate solicitors to another. The Law Society of Ireland has confirmed the procedure in their publication – A Guide to Good Professional Conduct for Solicitors. – and the transfer process is as follows: 1. A request should be sent by the new probate solicitor for the client\’s file. Upon receipt of this request, the previous probate solicitor should confirm the conditions of the transfer and enclose a bill of costs should any probate fees be due to him/her by the client. 2. The client is entitled to review the bill of costs from the previous solicitor and decide whether they agree or not to fees that the previous solicitor is requesting. If there is a dispute regarding the level of probate fees being charged, the client may seek resolution of same through the taxation process or via the Law Society should they feel the fees are excessive. Once the client agrees to the level of fees that the previous solicitor is requesting, it is often agreed that the probate fees will be dealt with as a debt on the estate deducted during the administration of the estate. All clients have the entitlement to change solicitors through file transfer should they feel the need to. Once a solicitor’s fees are paid to the previous solicitor the file belongs to the client. It is important to note that it is not appropriate and often not possible for a probate solicitor to give a second opinion on a matter on which another probate solicitor is instructed, the reason being that the new solicitor will not have access to the file to advise. Choosing a solicitor is an important decision and it is vital that you have trust in your solicitor. If you are thinking about changing solicitors or have any queries regarding transferring files between probate solicitors please contact us for more guidance on 01 234 3732.

A guide to Cross Border Estates – UK Estates with Property in Ireland In dealing with many UK Solicitors and Legal Personal Representatives[1] over the years it has become apparent that often situations can arise that result in principles of Irish law having applicability in the estates of foreign domiciled individuals. We regularly provide Irish Probate assistance to UK solicitors when they are dealing with an estate that contains an Irish property. In light of this a brief understanding of such principles and a cautionary word as regards their applicability is warranted. Deceased’s domicile and property abroad Generally, the rules concerning Conflict of Laws /Private International Law govern situations where a person dies domiciled abroad leaving movable or immovable property in Ireland. These rules apply to intestate and testate estates as follows: Intestate UK domiciled individuals with Immovable Property in Ireland It is established that movable property will be dealt with under the law of domicile of the person who dies intestate while the immovable property will be dealt with by the law of its location. Thus, immovable Irish property, such as a holiday home, will be dealt with under the Rules of Intestacy set out in the Irish Succession Act, 1965. In brief, the order of entitlement to inherit under these rules is as follows: – Spouse/civil partner (and no issue[2]) – Spouse/Civil Partner takes all Spouse/civil partner[3] and issue – spouse/civil partner takes 2/3 and children take 1/3 per stirpes[4] Grandchildren Great-grandchildren Great-great grandchildren Parents Brothers and sisters[5] Nieces and nephews Grandparents Uncles and aunts Great-grandparents First cousins/great uncles and aunts / great nephews and nieces Great-great grandparents These rules are quite different to those governing UK intestacies and often their applicability to immovable property in Ireland impacts on the surviving spouse and children. Indeed, there have been many cases where the surviving spouse/civil partner has suffered a loss in the Irish immovable property due to the difference in the Rules of Intestacy in the two jurisdictions and the applicability of same. Testate UK domiciled individuals with Immovable Property in Ireland Where a UK will is executed which purports to deal with all worldwide assets complications can arise when dealing with immovable property in Ireland. Rules of forced heirship can interfere with the provisions made in the will and lead to unintended consequences. Under section 111 of the Succession Act, 1965 a surviving spouse/civil partner is entitled to a legal right share of the deceased’s estate of half if the deceased left no children and one third[6] if the deceased left children. The result of this entitlement can be that the surviving spouse/civil partner inherits a proportion of immovable property in Ireland contrary to the deceased’s wishes as expressed in their will. This can cause a fracturing of the ownership of the property and indeed give rise to the future need for an additional Irish Grant of Representation (upon the death of the surviving spouse/civil partner). Conclusion The above issues often only come to light during the administration of the deceased’s Irish estate and at that stage there is no opportunity to rectify the situation. It is crucial, therefore, that at the stage of will drafting the testator is fully advised of the applicable law of all assets and appreciates the significance of Irish law on any Irish immovable assets. Once the testator has been so advised an informed decision can be made and any additional steps to ensure that their decision is effective can be taken. Clients may need an Irish will to deal specifically with Irish assets and indeed Irish inheritance taxation (Capital Acquisitions Taxation) advice should be obtained. The applicability of Irish inheritance taxation is far reaching with inheritances of all assets situated in Ireland being taxable regardless of the domicile, residence or ordinary residence of the deceased or beneficiary. If you need any assistance with UK Estates involving Irish property please contact us.   References: [1] This term will be used to refer to Executors and Administrators. [2] Issue meaning lineal descendants: child, grandchild, great-grandchild etc. [3] It should be noted that the intestate share of a civil partner is not absolute in that issue of the deceased can apply to the Court for enlargement of their share on intestacy under s. 67A(3). [4] i.e. Grandchildren as issue of predeceased child, if any, will keep parent’s share alive and divide it equally among them and so on. [5] Nephews/Nieces issue of any predeceased brothers and siblings will keep their parents share alive and divide it equally among them. [6] It should be noted that the legal right share of a civil partner, unlike a spouse, is not absolute in that a child of the deceased can apply to the Court under s. 117(3A) for provision to be made for them which can affect the legal right share of the surviving civil partner.

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: Full details of the Irish Estate including date of death valuations Full details of all foreign Estate to include date of death valuations Details of

Irish Probate Costs: Who will pay? Who has a say? If you are an executor (if there is a will) or an administrator (if there is no will) you will be in charge of selecting a solicitor to assist you in making an application to the Irish Probate Office for an Grant of Probate or Grant of Administration to allow you gather in the assets of the deceased person, pay any debts and expenses and then distribute the balance among those entitled to inherit from them. Irish Probate Fees: The ExecutorAdministrator’s Role This is a complex and demanding job and along with this comes the responsibility of choosing the right Irish Probate Solicitor. The responsibility for agreeing the Irish probate fees of the solicitor lies with the executor or administrator. The cost of probate in Ireland Where possible, it is preferable to obtain a fixed probate fee at commencement of instruction. This will eliminate any uncertainty and enable everyone involved to budget and plan and have peace of mind. Speak to an Irish Probate Solicitor to find our more about the costs of probate. Who pays the probate costs? The legal costs of a probate solicitor instructed by the executor or administrator to take out a Grant of Probate in the estate are paid for from the estate. This means the costs of probate in Ireland are paid from the deceased person’s property and assets. These costs will be paid in priority to the inheritance due to the beneficiaries. Who agrees the cost of probate? The executor or administrator has the primary responsibility for agreeing the legal costs of the probate solicitor acting in the estate. However, technically, as the costs of probate are being paid before any inheritance due to beneficiaries is paid out, technically some of the beneficiaries are actually paying the costs and should be notified of the costs of probate as soon as is possible. Case example: Mary made a will leaving everything to her two daughters, Jean and Orla. Mary appointed her brother Philip as her Executor. Philip has appointed a probate solicitor to extract the Irish Grant of Probate in the estate and has agreed a fixed fee with the solicitor. Philip receives a letter from the solicitor at the start of the case confirming the probate costs that are payable at the end. A copy of this letter is also sent to Jean and Orla. The law is very clear as regards who should be notified regarding the costs of probate. This approach is clear and transparent and leaves no room for disagreement and more importantly no surprises at the end of the process. We are happy to provide fixed fee quotations to executors in most cases once all relevant information is received. If you have any questions please feel free to contact us.