Grants and wills
A grant of representation is a document granted under seal by the High Court which gives authority to a named person (or persons) to deal with a deceased’s person’s estate.
The three most common types of grants of representation are:
1. Grant of probate.
When a person dies leaving a valid will and appointing an executor, a grant of probate issues to the executor. The person's assets are dealt with by the executor, according to the terms of the will. The deceased is said to have died testate.
2. Grant of letters of administration.
When a person dies without having made a valid will, they are said to have died intestate. A grant of letters of administration issues to the person or persons who were the nearest next of kin at the date of death. Next of kin is determined by the Succession Act 1965.
3. Grant of letters of administration with will annexed.
When a person dies leaving a valid will and a person other than the executor applies, a grant of letters of administration with will annexed issues to the person entitled by law.
When the grant issues to the applicant, he or she is called the legal personal representative.
Is a grant always necessary?
- If a person dies leaving small amounts of money in a bank, building society etc in his/her own name, that financial institution may agree to release the funds without the necessity for a grant. The financial institution’s decision is final.
- If a person dies leaving assets which were held by him/her jointly with another or other persons, those assets as a general rule become the sole property of the survivor/s on the death of the deceased. In cases of doubt, the intention of the deceased at the time the joint account was created is relevant.
- If a person dies and leaves no assets, there is generally no need to extract a grant. However, where a grant becomes necessary in such circumstances you must contact the Probate Officer in advance of such application.
How to obtain a grant.
An application for a grant of representation may be made to the Probate Office or the District Probate Registry where the deceased at the time of his or her death had a fixed place of abode.
The application may be made in person or through a solicitor.
The website of the Law Society of Ireland contains a search facility for locating a solicitor.
Solicitors’ applications to the Dublin Probate Office may be made in person or by post.
In most cases a solicitor is instructed by the executor or next of kin of the deceased to administer the estate and apply for the grant of representation. However, in some cases, the executor or next of kin decide to apply for the grant of representation without instructing a solicitor.
If you are considering applying as a personal applicant to the Dublin Probate Office, see the personal applications section.
If you intend applying as a personal applicant to one of the district probate registries contact that registry regarding their procedure as there may be regional variations.
Note: By applying for probate in person you are doing so without the benefit of legal advice. You must be confident of your ability to research and undertake all the relevant legal responsibilities. Failure to comply with your legal obligations may result in you being open to penalties and or legal proceedings.
The admission of wills to pr oof.
A will may be proved either in 'solemn form' by a judge (following court proceedings to establish its validity), or in 'common form' by the Probate Officer on the filing of documents in the Probate Office.
The Probate Officer may refuse probate of a will where there is evidence that it was not executed in accordance with the statutory requirements.
Under Order 79 Rule 4 of the Rules of the Superior Courts, the Probate Officer shall not allow probate or administration to issue until all the inquiries, which he/she may see fit to institute, have been answered to his/her satisfaction. The Probate Officer is, notwithstanding, to afford as great a facility for obtaining grants of probate or administration as is consistent with a due regard to the prevention of error or fraud.
Preparation of wills.
While the Probate Office has no remit in the making of wills the following elements of housekeeping regarding same have been agreed as best practice by the Probate Office and the Law Society of Ireland.
Wills prepared on single sheets with writing on one side only, should be bound in the traditional methods. These include:
• ribbon or tape.
• staples covered by heavy adhesive materials.
• brass eyelets.
Each page containing written material should be numbered in the following manner:
In the case of a will consisting of 10 sheets with writing on one side of each sheet, each written page should be numbered page 1 of 10, page 2 of 10, and so forth.
The suggested attestation clause would then read as follows:
'Signed and acknowledged by the above-named testator as and for his last will and testament in the presence of us both present at the same time who in his presence at his request and in the presence of each other have hereunto subscribed our names as witnesses this will having been printed on the front side only of the foregoing 10 sheets of A4 paper'.
'Signed by the testator in the presence of us and signed by us in the presence of the testator this will having been printed on the front side only of the foregoing 10 sheets of A4 paper'.
________________________Content reviewed: May 2017