Frequently Asked Questions
We have set out below the most Frequently Asked Questions for you. We hope these will be of assistance to you. If you would like more specific information please contact us.
- What is Probate?
- What is Grant of Administration?
- What is Capital Acquisitions Tax?
- How is Capital Acquisitions Tax calculated?
- Why should you make a Will?
- What arrangements can you make to ensure that your final wishes are carried out?
- What should you do when your relation dies?
- Did your relation leave a Will?
- What do you do if your relative has not left a Will?
- Is it possible to make a Will yourself without seeing a Solicitor?
- What should you do if you have property or assets in foreign countries?
- What should you do if your relation left property in a foreign country?
- What documentation and information should you bring to your solicitor once you have made an appointment?
- Is there anything else you should consider?
1. What is Probate?
When a deceased has made a Will, the process which allows the assets to be distributed is called Probate. The representative(s) of the deceased is known as the Executor (s).
If there was no Will, then the process is called Administration.
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2. What is Administration?
When a deceased has not made a Will, the process which allows the assets to be distributed is called Administration. The representative(s) of the deceased is known as the Administrator(s).
If there was a Will, then the process is called Probate.
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3. What is Capital Acquisitions Tax (CAT)?
Capital Acquisitions Tax (CAT) comprises of Gift Tax, Inheritance Tax and Discretionary Trust Tax. The tax is charged on the taxable values of the gift or inheritance.
CAT works by the application of a tax free allowance called a “Threshold”. Essentially, an individual has three thresholds and the inheritance/ gift will be examined using the appropriate threshold. Each threshold relates to the relationship between the deceased/ person giving the gift and the individual inheriting/ benefiting from the gift. The current thresholds are as follows: -
Relationship to Deceased or person giving the gift
| Threshold from 7/12/2011 |
| Group A: Son/ Daughter | €250,000.00 |
Group B: Parent*/ Brother/ Sister/ Niece/ Nephew/ Grandchild | €33,500.00 |
Group C: All other relationships not covered above | €16,750.00 |
*In certain circumstances, a parent taking an inheritance from a child can qualify for a Group (A) threshold
These thresholds or tax free allowances apply once only from 05/12/1991 to date. Thus, the threshold can be used for multiple inheritances within one group and indeed can be exhausted by one inheritance/gift leaving no threshold for the next inheritance/gift.
When an inheritance or gift exceeds the relevant tax free threshold, tax at a rate of 30% applies on balance of the gift or inheritance.
There are exemptions and reliefs which can be availed of to minimize CAT liability such as:
- Spouse to Spouse and Civil Partner to Civil Partner exemption
- Surviving Spouse Relief
- Small Gift Tax exemption of €3,000
- Agricultural Relief
- Business Relief
- Dwelling House Relief
- Child to parent Relief and Exemption
- Favourite Niece/ Nephew relief
It is extremely important to seek legal and financial advice on the possible tax implications of any gift or inheritance as penalties can apply for late payment along with interest.
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4. How is Capital Acquisitions Tax (CAT) calculated?
Capital Acquisitions Tax is chargeable on the balance of the gift or inheritance after the relevant threshold or tax free allowance has been deducted. Any expenses incurred can be deducted.
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5. Why should you make a Will?
Who should make a Will? and Why?
- You are married or a party to a Civil Partnership and have children.
- You have children who are under 18 years of age and need to appoint Guardians and Trustees.
- You live with your partner but you are not married (co-habiting for any length at all).
- A will is the only way to ensure that whatever you leave is distributed with the minimum delay.
- You are a homeowner.
- You set up your own business or firm
- You are getting married or entering a Civil Partnership.
- You are getting divorced or separated or dissolution of a Civil Partnership.
- You wish to leave some money/assets to your relatives.
- You wish to leave some money/assets to someone with disabilities.
- You want to give some money/assets to a charity or a special cause.
- You want to reduce the tax liability on your estate allowing you to leave more to your loved ones and favourite causes.
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6. What arrangements can you make to ensure that your final wishes are carried out?
Everybody should consider their final wishes at some stage. Making a will ensures that your estate is administered and distributed according to your wishes. It is also a very sensible decision to execute an Enduring Power of Attorney. This will ensure that in the event of you becoming incapable of dealing with your affairs your welfare and assets can be dealt with by your loved ones as per your wishes in your Enduring Power of Attorney (EPA).
In the event that an individual becomes incapacitated for whatever reason and no EPA had been created then it would be necessary for an application to be made to the President of the High Court to declare the individual a Ward of Court. This is a complex and costly procedure and can be easily avoided through execution of EPA.
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7. What should you do when my relative dies?
When a loved one dies it can be a very difficult time for the close family members. Decisions have to be made and arrangements made which can be very overwhelming.
We advise our clients that the first practical thing to do is to make the funeral arrangements. Once the funeral is over your relative’s death needs to be registered with the local Births, Marriages and Deaths Office.
It will be possible for the solicitor acting in the Estate to make arrangements for the immediate payment of funeral expenses from the bank account (post office account etc) of the deceased. The death certificate will be required to deal with the Estate of the deceased.
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8. Did your relative leave a Will?
Once the immediate aftermath of the funeral has passed you should ascertain if your relative has left a will. Most people nowadays will execute a will, the original of which will normally be kept at their solicitor’s office.
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9. What do you do if my relative has not left a Will?
If your relative has not left a will then they are deemed to have died Intestate. As such their estate must devolve and pass under the Rules of Intestacy in the Succession Act 1965 as per the diagram below, which shows who is entitled to inherit the estate. In order to administer and distribute your relative’s Estate whether they died Testate or Intestate you should consider contacting your solicitor to initiate the appropriate Administration or Probate procedures on your behalf.
Intestate Succession - Order of Entitlement for deaths on or after the 1st January 1967.
In brief, the order of entitlement to inherit under the Rules of Intestacy is as follows: -
- Spouse and Children/Civil Partner and Children
- Grandchildren
- Great-Grandchildren
- Great-Great Grandchildren
- Parents
- Brothers and Sisters
- Nieces and Nephews
- Grandparents
- Uncles and Aunts
- Great-Grandparents
- First Cousins/Great Uncles and Aunts / Great Nephews and Nieces
- Great-great Grandparents
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10. Is it possible to make a Will yourself without seeing a Solicitor?
Yes, it is possible but inadvisable to make a Will yourself.
In order for a Will to be valid it must comply with many requirements as under the Succession Act 1965 such as;
- The testator (person making the will) must be 18 years or over.
- The testator must be of sound disposing mind at the time the will is executed.
- The will must be signed at the foot or end of the will by the testator.
- There must be two witnesses to the testator’s signature and each witness must attest the will by his signature.
- If a direction or disposition is inserted into the Will after the testator has executed same it shall be invalid.
- A witness to a testator’s signature in a will cannot benefit under the will of a testator.
There are also numerous other necessary elements to drafting particular clauses in Wills which if completed incorrectly can result in Partial Intestacy (whereby only part of the will can stand) and the part that fails will result in that part of the estate passing under the Rules of Intestacy. It is for these reasons that legal advice is so important when a person decides to complete their will.
We strongly advise against making a Will without legal advice and assistance. Even if the Will is valid, the process of obtaining a Grant of Probate can be overcomplicated due to the numerous queries which will arise in the Probate Office regarding DIY Wills. There are simply too many mistakes that can be made in Wills.
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11. What should you do if you have property or assets in foreign countries?
It is important that anybody who has property or assets abroad makes a Will in the particular country or countries in which the property in situated. It is not enough to have a Will made in Ireland as this may not be enforceable in the foreign country in which your property in situated.
Many countries have different legal systems and laws to Ireland and you should obtain legal advice from a solicitor or lawyer in the particular country in which you hold the foreign property in order to ensure that your wishes are carried out.
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12. What should you do if my relative left property in a foreign country?
If your relative has left property in a foreign country then the Executor or Administrator of the Estate should seek firstly to establish if their deceased relative left a Will in the particular country. Secondly, the Executor or Administrator should obtain legal advise of a solicitor or lawyer in the particular country in which the property is situated in order to ensure that the property abroad is distributed according to your deceased relative’s wishes.
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13. What documentation and information should you bring to my solicitor once I have made an appointment to make a Will?
Click here to download your free Personal Assets record (47KB PDF)
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14. Is there anything else you should consider?
If your relative has passed away you may be entitled to a Bereavement Grant. This is a once-off payment based on the deceased person’s PRSI payments and other criteria. Application forms can be sent to the Pension Services Office, Social Welfare Services Office, College Road, Co. Sligo. Ph: +353 (0)71 69800.
Also, of the deceased owned property such as a house you should contact the property insurer and ensure that the insurance will remain in place whilst the property is vacant. Insurers must be kept advised of all relevant information.
In this difficult time you may find it helpful to avail of Bereavement Counselling. A number of charities also offer assistance and support to the relatives of a loved one who has passed away such as Barnardos, Hospices and various Family Support Agencies and Local Support Groups.
At Paul W. Tracey Solicitors we can assist and advise you with any legal aspect of your deceased relative’s Estate or if you would simply like to discuss and make your Will.
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Our Services
As Specialist Solicitors in Probate we are happy to assist or advise you in any aspect of your relatives/friends estate or will. If you need more information you can contact us.
You can start by telling us your query or call us on 1890 940 140 or +353 (0)1 649 9900, Email us at law@traceysolicitors.ie or we can call you back.
After discussing your situation with you, we can advise how to proceed. We look forward to hearing from you.
