Probate Explained: What Happens to Your House, Money & Will After Death

[00:00:00]Now, many people have had to or will have to go through the process of probate when a loved one has passed, but what is it and does it take too long?

[00:00:08]Why does it take so long?

[00:00:09]>> it take so long? Yeah, here to discuss this and debunk the most common misconceptions around probate is council member of the Law Society, Anya Hynes.

[00:00:16]Good morning to you. Thank you very much for joining us. Can you just explain what probate is?

[00:00:21]>> Okay, well, first of all, thank you very much for having me.

[00:00:24]>> You're very welcome.

[00:00:25]>> I'm really hoping that this legal segment doesn't send your viewers back to sleep, but >> I think something like this people are always so interested in because you hear when a loved one passed away, you always hear this word, "Oh, it has to go into probate." But a lot of people don't know what probate is.

[00:00:40]>> No, to to be to be to be fair, every pretty much everybody is going to have to go through the probate process.

[00:00:48]Um there are certain exceptions to it.

[00:00:50]Let's say if property was held jointly, but pretty much all of us in our lives are going to experience a situation where we have to deal with probate. And what it is is proving the will of a person if they've made a will and it's extracting what's called a grant of probate from the High Court Probate Office. So, it's it's a really legally very complex, lengthy procedure as your viewers will know. Anyone who has had to go through it will know it's a very tough process which is happening at like pretty much the worst time in people's lives.

[00:01:22]>> Yeah, lives. Yeah, somebody's passed away.

[00:01:24]>> How long can it take? Is there an average or can it be anything?

[00:01:28]>> Um there is a concept called legal concept called the executor's year. So, you can't sue an executor before a year goes past if they haven't managed the estate.

[00:01:38]Um but I suppose at the moment the probate office the applications are delayed by 3 months.

[00:01:47]So, there's a 3-month wait just when you get everything ready and you gather everything and you gather all the information, you do a tax return.

[00:01:56]Um there's a huge amount of work that has to be done before you even get your papers ready for the probate office.

[00:02:01]When they're ready for the probate office, then the probate office is taking about 3 months to process this.

[00:02:07]>> I'm not sure actually. It's It's It's a really There's everything has to be approved. It is an important process because this is saying the will is valid. There's no issues. The person was had testamentary capacity when they made the will. There There's so much that the probate office has to check and prove.

[00:02:26]It isn't a straightforward process.

[00:02:28]>> Yeah, and so if you make a will, well, we all sort of say, "Okay, if you make a will and you it's laid out what you want your assets and your money to go to, you have an executor of the will named on your will.

[00:02:40]Would you still need to go through probate?

[00:02:42]>> Yes.

[00:02:43]>> Oh.

[00:02:44]>> Absolutely. There's only really a few exceptions to having to go through probate, and you even have to go through probate if you've no will.

[00:02:51]Then you have to go through probate if you have a will and an executor appointed.

[00:02:55]So, the the exceptions are if you have a small estate, let's say under 20,000, some banks will let you get the money out on proof of death, like a death certificate.

[00:03:06]Or if assets were held jointly. So, if you and I own a property jointly together, if we're married, um, then if you or I pass away, the other can get directly by It's called survivorship.

[00:03:20]And if we joint accounts together, then bank accounts, then the money goes to the survivor without the need to go to probate. Now, you still have to potentially do tax returns and things like that, but Yeah.

[00:03:32]>> 0896-111-111.

[00:03:33]Anya's going to answer some questions for us a little bit later on. If you do have any questions around probate and you would like some answers because there are these moments in life where things are foisted on you and you've never thought about them before. And as you said, this is an incredibly distressing time for an awful people.

[00:03:49]Like you're fighting with a mobile phone company to try to say, "Can we cancel that and they're like no, you can't.

[00:03:53]Like it's really it's really tough what goes on.

[00:03:57]>> It is and it's made harder by a complex legal process. There's no doubt. There is no doubt.

[00:04:01]>> Is it too complex in this country? Is it the same everywhere else? Because you know Ireland always the same everywhere because you know Ireland we add another layer on to some stuff.

[00:04:09]>> No, like it Do you know that that's Well, that's true.

[00:04:13]>> It's [laughter] true. Sometimes we do.

[00:04:14]>> A lot of places do that.

[00:04:16]No, it really is very very similar process worldwide.

[00:04:20]>> It's an important thing, you know.

[00:04:22]Somebody's gathered all these assets during their lifetime and it's really important that they meant to give it to the people they wanted to give it to. Um and the the courts take it very seriously. That's why it's the high court probate office >> But that's that's what I'm saying like if you have a will and you're sort of very much laid out this is what I want that person to get, that person to get and nobody's contesting it.

[00:04:45]>> Mhm.

[00:04:45]>> Why do you have to go through all that and the expense cuz it is an expensive thing to do?

[00:04:51]>> Yeah.

[00:04:52]It is it's the law.

[00:04:54]>> It's the law.

[00:04:55]>> Why [laughter] Can we Can we talk Can we talk about You can talk about it You can fight with her about this off air. Can we talk about the financial burden of pro probate?

[00:05:03]>> much does it cost?

[00:05:04]>> So, probate office itself have fees and they're set according to the I suppose value of the estate. So, there are probate office fees and then the the legal fees are typically typically considered very high and some firms deal with it on the basis of the value of the estate which is reflective of the complexity of the assets. But some may do it on a a time spent basis >> had a a house worth 300,000, right?

[00:05:33]How much could that Like that's your asset. That's what you have. That's what you >> To be honest, I couldn't speak to individual solicitor fees, but I'm just saying that some solicitors would do it on the percentage basis.

[00:05:41]>> Percentage.

[00:05:42]>> And some might do it on a time spent basis. To be honest, if you do it on a time spent basis, it may work out more expensive, but you can shop around. The only time you can't shop around is because typically a person who's making a will wants their >> Solicitor.

[00:05:59]>> solicitor to do it.

[00:06:00]>> So, they've drawn the will, of course.

[00:06:02]>> the will up, and they say, "I want this firm of solicitors to administer my will because that firm probably knows an awful lot about their assets and any complexities."

[00:06:10]>> There can be complications around it also, isn't it? Because certain people, like if you're suffering with dementia or something like that, there may be complications.

[00:06:18]Can >> you tell us about that?

[00:06:19]>> That's a really good point. So, if um the death certificate say um shows that the person died uh with dementia, the probate office requires a uh an affidavit, usually from the people who made the will, maybe from the solicitor who made the will, that at the time they made the will, they had capacity to make the will. That's called testamentary capacity. That does delay things, but it's not a huge delay. There are other things that cause way more delays, and they would be, as you mentioned before, if there are fights or if somebody has a claim on the estate. So, if um person making a will doesn't make proper provision for their children, their children can apply to court and ask for more.

[00:07:03]>> So, they're contesting the will, basically.

[00:07:05]>> the will. And if somebody doesn't leave enough money for their spouse or doesn't leave enough of their estate to their spouse, the spouse has what's called a legal right share. That's an automatic entitlement. You don't have to go to court for that.

[00:07:17]>> So, the first one is from Teresa, and she says, "If there's no will at all, if no will has been made, does probate still apply?"

[00:07:24]>> I'm afraid it does. Yes, probate does apply even if there's no will. And there are rules about how probate will work in those circumstances. So, uh there's a who takes out the grant of probate is done by way of priority. So, let's say spouse first, then children, etc. So, they then go apply to the to the High Court, the Probate Office for a grant of and they called letters of administration. So, it's slightly different name. So, where there's no will, it's an administration, a grant of administration of a person's estate.

[00:07:56]>> Okay.

[00:07:56]>> So, that's what you have >> Still needed and even probably more complex than a grant of probate.

[00:08:04]>> And Margaret's gotten in contact.

[00:08:05]Margaret says, "Do you have to go to probate if you don't have property and have about 10,000 euro in cash?"

[00:08:12]>> Yeah, now this is a great question.

[00:08:14]They're all great questions. Thank you to the viewers.

[00:08:17]You should not have to go to probate if you have cash under 20,000 and no other assets.

[00:08:24]This depends on the banks.

[00:08:27]Banks should give you out assets of less than 20,000 on the production of the death certificate or an interim death certificate. They should give you the money.

[00:08:39]>> So, if it was your parent or your sister or brother, you could go with the death cert and say, "My brother has died. Here's the death cert and I know he has 10,000 in the bank here."

[00:08:49]>> And if he made a will, if the brother made a will, you'd show the might show the will as well that you're the person entitled to get the money.

[00:08:55]>> What if someone goes with the death cert and then next thing there's a daughter and a fight about who that 10,000 is for?

[00:09:02]>> be a will and hopefully Yeah, but could you imagine a fight for something less than 10,000? Or you know >> Families have fallen out for less.

[00:09:11]>> And in fairness, today it costs a living like that's a lot of money for an awful lot of people.

[00:09:16]>> But if there a lot of people to benefit from this 10,000, you know, then it becomes very little.

[00:09:21]>> Okay, but no. That's true as well. Sonya says, "Myself and my partner together 16 years. We've two children. We own a house together, but we're not married.

[00:09:29]How will this work if one of us passes away?"

[00:09:31]>> Yes, um another really really good question um and this involves the and I'm going to I've actually got a piece of paper here just to make sure it's a mouthful. Civil Partnership and Certain Rights and Obligations Act 2010.

[00:09:46]And there's a section there, section 194, which says that if provision hasn't been left for you um in the your co-partner's will, that you could actually apply to court to have proper provision made. Now, the children will be automatically entitled, but the the the partner wouldn't automatically be entitled and may have to uh take a case. And that's >> Yes. And you And you also may have to pay tax on that because you're not you're not married, you'd have to pay tax. So, there If you're not going to get married, there is such insurance called life of another. Sorry, I've had to do all of this. So, it's that if you're not married, you could be subscribed for rather than having to pay tax as though you and your partner have never even been together. Cuz in the eyes of the law, if you're not married, >> You're a stranger.

[00:10:30]>> Even if you're Even if you're together 30 years.

[00:10:33]>> You're strangers. Yeah.

[00:10:35]>> That's why people get married.

[00:10:36]>> Yeah.

[00:10:37]>> Or have Well, not not the only reason obviously.

[00:10:39]>> But it is that unfortunately it Unfortunately it is a huge reason.

[00:10:42]>> no, um civil partnerships would would have the benefit of >> Yeah.

[00:10:47]>> tax uh the tax reliefs that are between a spouse and a between spouses.

[00:10:51]>> Yeah. But it is very complicated. Please make sure that you're protected because you could be treated as a stranger. Um Emma says, "What's the process of selling a house during probate?"

[00:11:00]>> Probate.

[00:11:01]That's You you often hear about Well, you are not allowed to finish the sale. What you're allowed to do is say have a sale agreement, an agreement to sell, and enter into a sale agreement. You can also have a contract, but the contract says that as soon as the grant of probate is issued, then the sale will be completed. So, it's that that is the the point of I suppose probate and being difficult and so long.

[00:11:27]>> Mhm.

[00:11:28]>> It proves that the people who are in the grant of probate are entitled to the land and to the property. So, until that proof is in, you can't actually complete the sale, but you can do a lot of the pre-legal work. But, we all hear of these really long delays in sales where probate is involved.

[00:11:47]>> But, a lot of house hunters will be going to houses and you'll ask the question, is the house in probate? And they'll say it's going through. It is perfectly legal, [snorts] but you have to wait.

[00:11:55]>> Yeah, you can sign contracts which bind you into it, but the contracts are dependent on the grant of probate issuing. And that can take I know couples who were in you know in those kind of agreements and waiting kind of a year or two years. So, >> It's complicated.

[00:12:08]>> And meanwhile, the property market know the rest.

[00:12:10]>> So, trying and you've got no rights to it. Yeah.

[00:12:13]>> Um I'm divorced with my children have right to my ex-partner's estate if he dies.

[00:12:18]>> Yes, they they would. The children So, if there's a will and the ex-partner has or the husband hasn't left anything to the children, they have what's called the right to under section 117 of the Succession Act, they have to make a court application again to get proper provision.

[00:12:38]If the ex-spouse or partner didn't leave a will, then they have an automatic entitlement to all the estate under intestacy.

[00:12:49]>> Say the partner's with a new person and in his will he's left everything to that new person who he is now married to or whatever.

[00:12:56]>> that happens. And in those circumstances, the children, the first children if you like, they can go to court under section 117 of the Succession Act and say he should have she should have left me something. They didn't make proper provision. And the court will then, after the case is heard, give provision depending on the child's circumstances. So, if the child >> Would you normally win in a case like that?

[00:13:20]>> You would if if you if you have your own difficult circumstances. I'm not sure Elon Musk would be successful because you know, he has obviously got >> So it depends on what you how you're financially set up whether a judge would decide well look at yes, you should have been looked after in this case.

[00:13:36]>> Exactly, yeah. Yeah. So you mightn't always get something but if you need something, you should get something.

[00:13:42]>> Um Lisa says, is there a limit to to apply for probate? We have a loved one who passed away a number of years ago now. We still haven't gone through the process of probate.

[00:13:54]>> Yeah.

[00:13:55]Well, you're the executors, whoever was appointed executor under that will is supposed to do it as soon as practicable.

[00:14:03]>> Wow.

[00:14:03]>> As soon as possible.

[00:14:05]Um and there's this concept of the executor's year and that comes from again the succession act which says that an executor if they don't do things within a year, they can be sued.

[00:14:16]Um so now because there are so many delays in the probate process, things can happen like to delay um probate. One of things that you don't think about. If someone's in receipt of illness benefit, they might be audited.

[00:14:31]When they pass away, the so Department of Social Welfare has the right to audit all of the payments that have been made >> Yeah.

[00:14:36]>> to that person. We had one particular case where 12 years of bank records were audited by the Department of Social Welfare to make sure that the illness benefit was properly claimed >> Got you.

[00:14:47]>> because they have the right to take money from the person's estate if they were improperly paid. These are the things that kind of cause >> Okay.

[00:14:54]>> delays. So >> What if they just haven't bothered doing it?

[00:14:58]>> They should really get round to bothering to do it because the beneficiaries can then actually take a case against the executors for not >> time that has to be split up and divided among us or whatever.

[00:15:09]>> Okay.

[00:15:09]>> Typically the exac- it doesn't happen too often because we do have such long probate process but people should know that the beneficiaries do have that right and you kind of have to crack on and I know it's hard to crack on.

[00:15:19]>> Sometimes you're just in grief and you just don't want to get around to it.

[00:15:23]>> Yeah.

[00:15:23]>> At Tony, just very quickly, you mentioned this earlier on about uh Tony says, "I've been quoted thousands by a couple of different solicitors. Is there any way to make it cheaper anyway?"

[00:15:32]>> to make a will, I wonder? This is to do the probate process. Making a will is not too expensive, but the probate process is is and can be very expensive.

[00:15:42]So, you can do it yourself.

[00:15:45]>> Oh.

[00:15:45]>> There's a way to make it cheaper.

[00:15:47]So, you can do it yourself.

[00:15:50]And you can go to the probate office, and you can try to manage all the documents and things like that, and you can go to the probate office yourself.

[00:15:57]The probate office fees are a little bit more expensive if you're going to do it yourself. They have these fees fees which are based on the value of the estate.

[00:16:07]And and I mean I say that with the caveat.

[00:16:09]>> Yeah.

[00:16:10]>> Um if you know, the as I said to you earlier, if the person who made the will said, "I want this firm of solicitors to manage >> Oh, yeah.

[00:16:19]>> my assets because they know everything about me."

[00:16:21]>> Yeah.

[00:16:21]>> So, you can't do it yourself in those circumstances. And then you could potentially. And then the probate office will look at the at the estate and the will and everything else. And if when the person presents it themselves to do it themselves, and if the probate officer know, "This is too complex. I'm sorry, you're back to having to use a solicitor."

[00:16:40]>> will look at it, and they will give you advice on it.

[00:16:42]>> They're not allowed to give legal advice.

[00:16:44]>> No, but they will >> But they they will help you through the process, and they will tell you if you have everything in order cuz there's these things called legal proofs, and they all have to be in order.

[00:16:53]>> Okay.

[00:16:53]>> So easy. Best luck with that one.

[00:16:56]Law law so easy. From the uh account member of the law society, On Your Owns.

[00:17:01]Thank you so much for joining us today.

[00:17:03]We really do appreciate it.