Wills & Probate | Legal Guides

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Making a will ensures that, when you die, your property and other possessions go to the people that you choose. 

You can find out more about making a will, and the process involved, via the links below:

Talk to your solicitor

The information provided here is intended as a guide only and is not a substitute for professional advice. If you have a legal issue, you should talk to a solicitor who has the skills to help you.

No responsibility is accepted for any errors or omissions, howsoever arising.

Get a quote

Get a Quote is a pilot project to help members of the public get quotations from solicitors' firms for certain legal services.

Firms participating in the pilot will provide initial quotations for potential clients looking to make a will or manage the probate process.

Making a will ensures that, when you die, your property and other possessions go to the people that you choose. 

Solicitors often help clients to draw up their wills and act as executors of estates, as they are trained and experienced in the legal processes involved.

Your will outlines what you want to happen to your possessions, including any money or property that you own, after you die. If your will is valid, any debts that you owe will be paid from your estate, and the remaining assets will be distributed to the people named in your will. An ‘executor’ (or executors) named in your will is usually responsible for carrying out your wishes.

A valid will

A will can only be considered valid if:

  • It is made in writing.
  • The person making the will (the testator) is over 18 years old, or has been married.
  • The testator has capacity to make a will.
  • The testator signs or marks the will, at the end of the document, and acknowledges it in the presence of two witnesses.
  • The testator’s two witnesses also sign the will in the presence of the testator.
  • Neither of the testator’s witnesses – or their spouses or civil partners – receive anything in the will. Gifts to them will not be effective. 

Your solicitor can offer important advice to help you make a valid will.

Legal considerations

When you die, your spouse or civil partner has a legal right to part of your estate. In certain circumstances, an unmarried cohabitant (called a ‘qualified cohabitant’) who is dependent on you may have a right to sue the estate for payment on your death. Talk to your solicitor to learn more about this. 

Dying intestate

If you die without making a valid will, you will have died ‘intestate’. This means that an administrator will pay any of your outstanding debts from your estate (all your possessions and assets), and then distribute those assets among your living relatives according to a set formula. However, the process is usually more complicated and expensive than it would be with a valid will. 

After a person dies, his or her ‘estate’ (or assets) is administered by a personal representative. You can find information on the process involved below.

Talk to a solicitor

Nothing can adequately prepare us for the loss of a loved one. A lot of everyday tasks need attention and you may need to make important decisions about the deceased’s property and personal belongings. You can find information on acting as a personal representative here, but we recommend that you talk to your solicitor.

The estate

When a person dies, the deceased’s estate is everything they owned, except assets where ownership ceases on death or passes on automatically to someone else. After payment of debts, including outstanding taxes, the ‘estate’ is divided among the beneficiaries in accordance with the deceased’s Will. If there is no Will, the deceased is said to have died ‘intestate’ and the law decides how the estate should be divided among family members.

A personal representative

A personal representative is the person responsible for administering the estate (all a person legally owns at the date of their death) of a deceased person. He or she can be either an ‘executor’ or ‘administrator’.

Executors are the people named in the Will to deal with the estate. Where there is a Will but no executor, or where a person dies without having made a Will, this person is called an administrator.

Where there is no Will, the closest family member is usually the administrator. Where there is a will but no executor, the person entitled to the residue of the estate is usually the administrator. The ‘residue of the estate’ is any part of the estate not specifically identified and given away in the Will.  The role of personal representative, once you accept it is for life.

Administering the estate includes:

  • Identifying the assets (items owned) and liabilities (such as unpaid bills) of the deceased person.
  • Getting control of the assets.
  • Paying the liabilities.
  • Distributing the remaining assets to the beneficiaries.

The personal representative(s) make decisions about the estate, but they need to consult the beneficiaries of the estate each time they are making a decision that may affect them.

First steps

At the beginning of the process, it is important that you identify any legal and tax issues that may need to be dealt with. These are not always obvious and can result in a personal representative being held personally liable. For example, if you distribute the assets to the wrong people or without paying all the debts, you may have to pay the money to the right people or the creditors yourself.

  • Download a first steps checklist for personal representatives. [link to checklist]     

If you are a personal representative, and have any doubts or questions about your role, you should talk to a solicitor [anchor link].

Grants of representation

A ‘grant of representation’ is a legal document that allows the personal representative(s) to collect all assets of the deceased and administer the estate. The High Court Probate Office produces this document and sends it to the personal representative.

  • Where there is a Will and an executor, the personal representative should apply for a ‘Grant of Probate’.
  • Where there is a Will, but no executor, the personal representative should apply for ‘Grant of Administration with Will Annexed [attached]’.
  • Where there is no Will, the personal presentative should apply for a ‘Grant of Administration Intestate’.    

Until the Probate Office produces a Grant of Representation, the personal representatives are generally unable to deal with the assets owned by the deceased person. In limited circumstances, it may be possible to administer an estate without a grant.

Timeframes 

Although the law allows one year from the date of death for a personal representative to give beneficiaries what is due to them, the time it takes varies. It will usually be upwards of three months before a ‘grant of representation’ issues, but it can take longer. The following matters may affect the process.

Inland Revenue Affidavit

The size of the estate, and the time required to get all of the detailed information needed to complete an Inland Revenue Affidavit (CA24), will affect the length of time spent before it is possible to administer an estate.

The Inland Revenue Affidavit is a Revenue form which lists the value of the assets and liabilities of the deceased at the date of death. In certain circumstances, details of beneficiaries are included.

PPS numbers

If there is a delay in getting the PPS numbers for the deceased and the beneficiaries of the Will, particularly if any beneficiaries live outside the country, this may delay the process.

Previous gifts

If the beneficiaries have received previous gifts or inheritances, you will need to include full details of them in the Inland Revenue Affidavit.

The Department of Employment Affairs and Social Protection

You need to find out if the deceased was on a non-contributory pension or received non-contributory benefits during their lifetime.

If they were, the personal representative should send a copy of the Inland Revenue Affidavit to the Department of Employment Affairs and Social Protection to find out whether or not the deceased was paid money to which they were not entitled.

If, for example, the Inland Revenue Affidavit showed assets and income that the deceased had not declared when applying for the non-contributory pension or benefits, some or all of the money paid by the Department of Employment Affairs and Social Protection to the deceased could be claimed back. If this happens, the personal representative is personally liable to the Department for this money. If a personal representative has already paid it out to beneficiaries, he or she can be sued by the Department for the money owed.

Likewise, if the deceased benefited from the Fair Deal scheme, the personal representative should send a copy of the Inland Revenue Affidavit to the HSE before distributing the estate. The same personal liability would apply if the HSE found that assets and income listed in the Inland Revenue Affidavit had not been declared by the deceased when applying for the Fair Deal scheme.

Taxes

Apart from any taxes payable by the deceased before their death, the personal representative will need to address the following taxes.

Income and capital gains tax

The personal representative is responsible for handling income tax and capital gains tax (tax on gifts and inheritances), which may arise during the administration of the estate. If the personal representative fails to make sure that the relevant taxes are paid, he or she is personally liable. This means that the personal representative will have to pay the relevant taxes.

Capital Acquisitions Tax (CAT)

The personal representative must make sure CAT is paid where appropriate. CAT is a tax on gifts and inheritances. Tax reliefs, exemptions or both, may be available.

Previous gifts and inheritances

Your solicitor will advise you if previous gifts or inheritances received by a beneficiary should be considered.

For deaths before 2000

If you are dealing with the estate of someone who died between 18 June 1993 and 6 December 2000, then you may have to pay a tax (called Probate tax) from the assets of the estate.

Capital Acquisitions Tax (CAT) is important to consider when you are planning a will, or if you inherit something of value from a loved one. Find information about CAT using the links below.

What is Capital Acquisitions Tax (CAT)

Capital Acquisitions Tax (CAT) is a tax on benefits which can be either:

  • Gifts (received from a living person).
  • Inheritances (received from a deceased person).

In all cases, a ‘benefit’ is where a person receives something for nothing or for less than the market value. The person receiving the benefit is called the “beneficiary”.

Who pays CAT

If you receive a gift or inheritance from anyone other than your spouse or civil partner, you must pay tax. However, if you receive a gift or inheritance of Irish property from your spouse or civil partner, you do not have to pay any tax: it is ‘tax exempt’.

The group threshold

The relationship between a person receiving the benefit and the person providing it can determine what portion of the benefit is free from tax. The amount that a person can receive from another tax free is determined by the ‘group threshold’.

There are three group thresholds: Group A, Group B and Group C. The group thresholds are updated each year. Your solicitor can explain the details of these group thresholds, and how they work.

Group A

Children are Group A. This is the largest threshold, meaning that they can inherit larger amounts free of tax than any other group.

If you qualify under 'Group A', benefits you received from a person with the same relationship to you as the person currently providing the benefit can use up your group threshold. For example, if you received an inheritance from your mother two years ago and a gift from your father this year (both Group A), the value of your mother’s inheritance would be added to the value of the gift from your father and taken from your group threshold.

Group B

The group threshold for Group B is much smaller than Group A. People in this group include the following:

  • Parents.
  • Brothers and sisters.
  • Nephews and nieces.
  • Grandchildren.

Group C

Everybody else is Group C, the smallest threshold.

After the group threshold is used

The group threshold is a lifetime allowance. After it is used, you must pay tax on the balance of the benefit. This is paid at the rate that applies on death or at the time of the benefit.

This aspect of tax law is complex, with several conditions and exemptions. We recommend that you talk to your solicitor.

Reducing the impact of inheritance tax

Proper estate planning with your solicitor can minimise the tax that your beneficiaries have to pay. Ask your solicitor to explain:

  • The tax reliefs and exemptions available.
  • How you can divide up your property to use all available group thresholds.
  • How your beneficiary can plan to fund the tax.

Tax reliefs

A number of exemptions are available which can lower the tax you have to pay (or, in rarer instances, remove the requirement for you to pay tax).

These include:

  • Agricultural property.
  • Business property.
  • Certain nephews or nieces.
  • Charitable inheritances or gifts
  • Dwelling exemption.
  • Children of a deceased child.
  • Surviving spouse or civil partner.

Certain other types of property may be exempt from CAT. Each exemption and relief has conditions that must be met and these conditions can change under annual finance legislation.

Many of these reliefs and exemptions provide for a ‘clawback’ (take back of reliefs) of the relief if certain conditions are not met during the first six years after you apply for the relief. Clawback means that the tax on your gift or inheritance will be re-calculated as if the relief or exemption never applied and you may have to pay the CAT now due.

Managing CAT liability

Other options available when managing CAT liability include:

  • Small-gift exemption. The first €3,000 of any gift to any person each year is exempt from tax. You could, for example, give each child or grandchild €3,000 each year tax free.
  • Paying into a special type of insurance policy where the proceeds are used to pay the tax.
  • Setting up a discretionary trust – a trust is a financial arrangement in which your money or property is given to trustees to mind for your beneficiaries. The trustees are the legal owners of the property but hold the property for the benefit of (or “in trust” for) the beneficiaries. There is a special tax that arises called Discretionary Trust Tax that should be considered before setting up a discretionary trust.

Your solicitor will advise you on the best way to manage your CAT liability, and the reliefs or examptions that may apply.

Unmarried partners and inheritance tax

A ‘cohabitant’ or ‘partner’ in the general meaning (not a ‘civil partner’) is treated as a stranger for tax purposes and cannot avail of the spousal exemption. Tax law does not recognise a ‘common law spouse’.

However, a partner may claim for compensation under the cohabitant legislation. Any award from the Court will be free from CAT.

If your cohabitant has died, and you are considering a claim for compensation, we recommend that you talk to your solicitor.

Most wills are not disputed, or challenged. However, if there is a dispute about the wishes expressed in the will, or whether a will is legally valid, it must be settled in court. For this reason, it is very important that your will should be legally valid, and as clear as possible.

To ensure that your will is legally valid, or if you believe that a loved one’s will may not be valid, you can take legal advice from a solicitor.