Citation and Renunciation
If the person named as executor or the next person entitled does not and will not take up his office there is a procedure by which a document called citation issues from the Probate Office requiring him to take up or refuse the offer within a specified period. If he does not apply then the next persons in order of entitlement may proceed to take out a grant of probate.
An executor may renounce his rights to take probate in writing. This is a formal document in writing which is witnessed and file in the Probate Office. Once announced the person may not become executor without the consent of Court.
Application for Representation
An application may be made to Court for a grant of administration to any person as the Court thinks fit. This may occur where special circumstances necessitate.
An Application to take a grant of probate is made to either the central probate or one of the district probate offices throughout the country. The Probate Office has authority to issue grants of probate throughout Ireland. The Probate Offices are part of the High Court.
In the vast majority of cases, the Will is proved by Affidavit swearing is as follows:
- the amount of the estate;
- that the document attached is a true last Will;
- that the deceased did not marry or renounce it afterwards;
- that the executor will administer the estate.
Certain other papers must be lodged with the Probate Office including certain inheritance tax documents, original and true copy Will, the above-mentioned oath, notice of Application.
Issue of Grant
Once the papers are reviewed by the Probate Office and the Will appears to be valid and a grant of representation in common form issues. This is a Court sealed document which gives the executor or personal representative power to act.
If there are any defects in the document or in the Will or other circumstances appear the Probate Office may query. Where a Will does not appear to be complete or, for example, contains or there is any question as to whether it was properly signed the Probate Office may require further oaths and affidavits by witnesses and other persons to confirm that a valid Will has been made.
In a very small number of cases, a Will is proved by a Court Order. This is called proof in solemn form. This may occur where the Probate Office is not satisfied that the Will is in order and are not satisfied by the results of affidavits or enquiries.
It may also occur where there is a full intestate case, for example, where other beneficiaries under another Will allege the particular Will concerned is valid. Contested probate commonly arises where there is a question over mental capacity or whether the deceased has been unduly influenced in making the Will concerned. There are special High Court procedures relation to contesting and forming and proving of Wills.
Where a person objects to a grant of representation being issued it may file a document called a caveat in the Probate Office. If no such person lodging the caveat objects to the grant being issued without prior notice to him. The purpose is to enable the person filing the caveat to lodge an objection.
The purpose of the caveat may be to assert a doubt that the person filing it has about the validity of a Will, the suitability of the personal representatives or generally to ensure that it can be contested.
A warning may be issued by the Probate Office for the person lodging the caveat requiring to substantiate the reason within six days. If he does not do so he is said to have warned off. If he gives some good and valid reason then the applicant may be required the court to determine the question such as the validity of the Will, etc.
The High Court has powers to revoke, cancel or withdraw any grant of probate or administration. There are a number of grounds on which this may issue, for example, if the Will is found invalid or a later Will is found, the grant was issued to the wrong person, the executor has died.
Letters of Administration
The procedure for letters of administration is broadly similar. The entitlement of letters of ministrations follows the entitlement on intestacy. For example, where there is a spouse, the spouse generally has the first and pre-eminent right. Later other parties such as children may only take a grant if the spouse renounces. Where a number of parties are equally entitled the first person generally to apply receives the grant.
Where a person with an interest such as children wish to take out a grant but the person with the primary right e.g. the spouse refuses there is provision for a mechanism to require such person to take out a grant within a certain time or lose that right.
Where the person named as executor in the Will has died or renounces probate the rules lay down an order of entitlement to persons to take out a grant. Generally, this falls to the person with the principal interest. There are rules for setting out the order of entitlement. Generally, for example, the residuary legatee i.e. a person who receives the balance of assets (irrespective of their size) will have the next right in order. The order of priority is laid down in Court rules.
Where a grant is taken in respect of a Will where somebody other than the executor it is stated to be letters of administration with the Will annexed.
There are mechanisms for interested parties such as creditors to apply for grants. See our section on death and insolvency in relation to creditor grants.
It is possible to apply for and obtain limited grants of representation. The purpose is to deal with particular issues that arise, such as taking and defending legal proceedings. A court order is generally required. The grant does not oblige the person appointed to administer all of the deceased’s assets.
There are other types of special grant which must generally be issued by Court. These include grants for the purpose of defending or taking litigation in circumstances where a full grant is not taken out. This may issue where, for example, the person entitled to take out grants frustrate the creditor or person by refusing to take out a grant or letters of administration.