Undertakings, non-resident personal representative and probate practice

Practitioners are reminded that as soon as a Grant of Representation issues, the personal representative is absolutely entitled to receive the proceeds of any funds in any bank or other financial institution.

A solicitor acting for such personal representative(s) should therefore, be extremely cautious in giving any undertaking concerning such funds and should avoid doing so wherever possible.

Prior to giving any such undertaking the solicitor should obtain from each of the personal representatives the usual irrevocable authority to act and an irrevocable instruction to the financial institution concerned that the funds can only be paid through the solicitor's office.

This instruction should be then forwarded to the financial institution concerned and confirmation should be obtained from them that they will only release the proceeds through the solicitor’s office.

This should also be done where the solicitor is acting as agent for a non-resident personal representative. In such cases under s. 48(10) of the CAT Consolidation Act, 2003 (as inserted by section 147(1) (l) of the Finance Act, 2010 and further clarified by Section 115 of the Finance Act, 2012) the solicitor shall be assessable and chargeable for the tax to the same extent as the beneficiary.

In all such cases, this should be done as soon as early as possible after the issue arises.