Applying for Probate in Ireland
In a recent webinar, Erin Research hosted High Court Probate Officer John Glennon BL MBA in relation to how solicitors can ensure their application for a grant of representation is accepted on the first submission. Mr. Glennon gave several invaluable tips, tricks, and errors to avoid when applying for probate in Ireland. The key areas that were covered included testamentary capacity, valuations, and oaths and bonds.
For the convenience of probate practitioners, we have summarized the most important points that were covered during the webinar.
Submitting Probate Papers
The single biggest contributor to waiting times in the Probate Office is the error rates on papers that are submitted. Waiting times are double what they should be simply because of the error rate. It is estimated that for every ten applications submitted, eight are returned for correction, which raises the question: how can the error rate be improved?
Simply put, the standard of the papers that are submitted needs to be raised.
One area that was singled out in which solicitors can make improvements was in testamentary capacity.
If either dementia, alzheimers or cognitive impairment are set out on a death certificate there is a possibility of an issue arising regarding testamentary capacity. The Probate Office are anxious not to raise issues in they can be avoided.
Generally speaking no query will be raised if the death occurred more than ten years after execution of a Will.
If a solicitor has any doubts he or she should obtain a medical affidavit at the time of execution of the Will.
If a client made a will and also executed an enduring power of attorney in or around the time they executed their Will, the Probate Office is prepared to accept the medical cert that goes with the EPA as evidence of capacity. The Probate Office will accept this as evidence that the person was of sound mind and therefore capable of making a will.
Where a husband is bequeathing his estate to his spouse or vice versa, and there are no issue the Probate Office does not raise testamentary capacity.
There are no testamentary issues with intestacy.
While the test for capacity is a legal test and solicitors are expected to apply that test at the time of accepting instructions the Probate Office will more often than not seek medical evidence particularly in cases where there is some doubt and there is very little time difference between execution of the Will and death. The fundamental problem with this practice is the lack of impartiality.
The Probate Office will accept medical evidence that is based on a medical professional examining the deceased’s records even though they never treated the deceased provided the medical evidence is clear and unambiguous.
In a worst case scenario solicitors can be asked to prove a Will in common form if they cannot satisfy the Probate Office that the deceased had capacity at the date of execution of the Will. This is an application to the Probate Judge on a Monday.
If you’re representing the estate of a deceased person who has died in the last two years, the Probate Office does not want any valuations. The only reason the office began looking for valuations was because of the value of the bond as opposed to the value of the estate. The primary function of the Probate Office is to establish who has correct title and to ensure that the proper papers are in place to support that title.
Usually the only time when the value of the estate becomes an issue is when a bond has to be executed. If the date of death is within the last 2 years, the Probate Office does not need any form of valuation. This saves solicitors the time in having to deal with auctioneers.
Going forward, the Probate Office is seeking to ascertain whether they can eliminate valuations altogether. This is expected to improve waiting times.
Affidavits of market value are never sought.
New SA2 Form and Revenue
One way the Probate Office has managed to expedite the probate process is via the elimination of the CA24. The waiting times dropped to 6 weeks after the removal of the old CA24 system.
Recently, Mark Bradshaw, the project manager in Revenue, made a presentation to the Law Society where he discussed several shortcuts, clarifications and workarounds for the system. Mr. Glennon strongly recommends that if the Revenue are speaking you should try to attend, and if you cannot you should attempt to source a replay of the webinar.
Always ensure that the assets are included with your SA2 when it is lodged.
Always ensure that the correct Will is uploaded onto the Revenue system.
New Oath and Bond
One of the most common reasons why applications are returned is due to the fact that applicants do not insert double the value of the estate on the administration bond. It is simply a matter of multiplying the value of the estate by two, but most applicants fail to do so, which results in a refusal to accept the application and a slowing down of the process. The new Oath and Bond eliminates the need to repeat details in the body of either document thus eliminating the need to raise queries.
Some solicitors have not saved the correct format into their systems and this is leading to rejections.
Even though the two documents are now one and should always be executed as one document a number of solicitors are not executing the new form as one document and different commissioners for oaths are signing form leading to rejected papers.
Some solicitors are also changing the format of the new form and this is also leading to rejections.
The new oath has effectively eliminated the possibility that applicants could make a mistake by bringing some of the key information to the top of the list. Solicitors should be cognizant that the most important information is in the first three lines. It’s not the title that causes delays, rather other items. For example, the Probate Office is no longer looking for occupations. Furthermore, only insert the value of the gross estate as opposed to breaking it down.
There are an increasing number of solicitors who are submitting incorrect titles and subsequently wasting significant time arguing that their title is correct when it is blatantly incorrect. Title has not changed in over fifty years and the Law Society guidelines on title and the sample titles in Mongey all still apply. If solicitors are not sure about title both sources should be looked at in advance of submitting papers to the probate Office.
Deceased persons who died outside the jurisdiction
It was explained that if you have a will in England, Northern Ireland or Wales, those wills are normally accepted as validly executed under Irish law as the laws on execution are the same.
Scottish Wills are not executed in the same manner and if you haven’t proven a Will in Scotland you will need to supply an affidavit of Law stating that the Will was properly executed under Scottish law.
American and Common Law jurisdictions
To prove a US, Canadian, Australian, South African or New Zealand Will where probate has been taken out in those jurisdictions you MUST submit a sealed and certified copy of the Will’ there are no exceptions and no alternative will be accepted.
One of the major problems with American cases is that clients and US attorneys want to retain the seal and certified copies, and because of this practice the Probate Office has a tendency to receive photocopies. This is an importance of this issue that must be stressed: do not send in any documents that are not sealed and certified.
In other countries, applicants may encounter significant difficulties in proving title. If you have cases from countries outside the UK and Ireland, the Probate office advises solicitors to contact them directly. The Law Society itself can either help practitioners with the title or refer you to other solicitors who will help you. Solicitors need to be wary of persisting with difficult applications as it can lead to clients being charged excessively in some instances.
The difficulties in some foreign jurisdictions were highlighted, such as France where practitioners will encounter lots of difficulties and find it next to impossible to obtain an affidavit of law.
This very informative webinar was finished with a short Q&A.
(Q 1) In a case where an executor named in a will is unable to act due to mental incapacity who would be the appropriate person to make an application to the Probate Office?
(A) If the person is a ward of court, the Committee can make the application without any further order. If the person is a not a ward of court you need to apply to the Probate Office for a probate officer’s order appointing somebody to act as the committee for that person.
(Q 2) Why does the Probate Office accept cheques from the general public but not solicitors?
(A) as the Probate Office processes 10,000 applications a year, if they were all done by cheque, it would cause huge delays.
(Q 3) Is it proposed to take the fee system online or is to remain stamping the notice of application of the courts of service?
(A) It will remain stamping for the moment
(Q 4) I have a spouse who is suffering from dementia and the husband died intestate, can the son take out the grant?
(A) No. You can’t bypass somebody who is incapable, You’ll have to appoint a Committee. You cannot pick your title and the rules have to be complied with.
(Q 5) Should the medical cert for an EPA be submitted with the application of probate?
(A) If you think that the Probate Office is going to raise an issue of testamentary capacity, yes.
(Q 6) Can you clarify if you require an affidavit of market value in the case of intestacy?
(A) We don’t look for affidavits of market value at all. We might want a vakluation but no affidavits anymore.
(Q 7) If you have more than one executor do you swear more than one oath per executor?
(A) No. You swear one oath, but you have to double up on the details
This was a very informative webinar and to recap, some of the key points include:
- The Probate Office does not query testamentary capacity where the will is made 10 years prior to death
- If there’s intestacy, the Probate Office does not raise testamentary capacity.
- Sending in an affidavit in which the Solicitor took instructions for the will is usually not sufficient by itself. Medical evidence will be sought in most cases.
- If you’re representing the estate of a Deceased who has died in the last two years, the Probate Office does not want any valuations.
- The old CA24 system has ended.
- With the new oath, Solicitors should be cognizant that the most important information is in Part A
- Only put in gross estate as opposed to breaking it down.
- When it comes to deaths outside the UK and Ireland you may need specialized advice.
Erin Research is an Irish firm of international probate genealogists specialising in tracing missing beneficiaries and next of kin to estates worldwide. We would like to thank mr. Glennon for sharing his knowledge and expertise with the legal profession