Where a person dies without a will, he or she is said to die intestate. The Succession Act sets out who inherits the assets of a person who dies intestate. The rules also apply where a will was made, but it is ineffective or partly ineffective.
An “intestate” means a person who leaves no will or leaves a will but leaves undisposed of some beneficial interest in his estate, and “intestate” shall be construed accordingly
The modern intestacy rules date from the late 1950s. In the case of deaths before 1st June 1959, the rules were radically different and depended on a somewhat artificial legal classification of the type of assets concerned. Children had greater rights and spouses had lesser rights.
Prior to the Succession Act, there were different rules for movable property and real property (land and buildings). Freehold unregistered title property vested directly in the heir at law, who was generally the eldest male. Most Irish agricultural land was registered, to which the more modern movable property rules applied. Accordingly, the older succession rules granting primacy to the heir at law did not apply.
The Succession Act greatly enhanced the right of spouses. The recent legislation on registered civil partners and cohabitants has granted new rights to those persons. See our separate chapter on the rights of civil partners and cohabitants.
The entitlements on intestacy apply to the deceased’s net estate. This is his or her assets, net of debts and liabilities. If liabilities exceed assets, then the estate must be treated as an insolvent estate and the personal representatives must apply the rules of bankruptcy. See the chapter in the section on bankruptcy.
Spouse and Children
If a person dies leaving a spouse and no issue (i.e. no descendants), the spouse takes the whole estate. If the deceased died leaving a spouse and children, the spouse takes two thirds and the children take one-third of the net estate. The children share the one third so that if, for example, there are four children, each is entitled to 1/12 of the net estate. The child’s share must be held on trust, until he or she reaches 18 years of age. The spouse will usually be the trustee.
In this context, the term “spouse” means the lawful spouse of the deceased. See the chapter on the legal right shares of spouses, which apply where the Will does not make sufficient provision for them. See also the chapter on cohabitants and registered civil partners
In the days before widespread joint ownership of the family home, it commonly occurred, that where a dwelling house comprised the deceased’s principal asset, the children’s share might prove problematical for the spouse, if the children (having reached the age of majority) demanded payment of his share. In practice, spouses commonly make wills leaving all of their assets to each other, making provision for their children, only of the death of the survivor of them.
Where a person dies without a surviving spouse (or civil partner), but with issue (i.e. children, grandchildren, etc.) his or her children take the entire estate equally. If a child has died before the deceased leaving children, then the children will take his parent’s share. Grandchildren and more remote issue will not take anything if their parent is alive.
For example, a person may die leaving two children and three grandchildren surviving him, who are the children of a deceased child who died before him. There is no spouse. In this case, the two surviving children take one third of the estate each, while the children of the deceased child between them take the remaining third (i.e. one ninth share) each. In this case, the children of the surviving children receive no benefit. The child of the deceased takes to the exclusion of their children.
Under the Adoption Acts, “issue” includes children of the deceased who have been lawfully adopted. Where children have been adopted, their natural parents are no longer their parents from a legal perspective, including in the context of succession rights.
Until 1987, “issue” included only children whose parents were married. The Status of Children Act 1987 extends “issue” to include all children of the deceased whether marital or otherwise. See the separate sections on family law in relation to proof of paternity, etc.
No Spouse No Child
If a person dies without leaving a spouse (or civil partner) or issue, his estate (his net assets) passes equally to his parents. If only one parent survives, then that parent takes the whole estate. The Status of Children Act provides that the relationship of parent and child should be determined without reference to marital status. It is presumed until the contrary is shown, that a child whose parents are unmarried is not survived by his father, or anyone else tracing a relationship through his father.
If a person dies without a spouse, issue or parents, his estate is divided between his siblings. Where any brothers or sisters have not survived the deceased, but have died leaving children, those children take the share of their parent in equal shares. Therefore, where one sibling has survived the deceased, but another sibling has already died, leaving three children the estate is divided 50% to the surviving sibling and 1/6 each to the children, in the absence of closer relations. This rule does not apply to grandchildren or remoter relations of sibling’s children. If no siblings survive, the estate is divided between the children of the siblings equally.
Children or “issue” include unborn children in gestation at the date of death. Siblings include siblings with one common parent i.e. a half brother and a half-sister. There is no preference for full siblings over half siblings.
Where a person dies leaving neither spouse, issue, children, siblings, or children of siblings, the estate is divided between their next of kin. These are those most closely related. Degrees of relationship are counted upwards to the nearest common ancestor with other living persons who have survived the deceased and then counted downwards from that ancestor to the relative. First cousins would therefore be at four steps. Second cousins would be at six steps etc.
Where direct ancestors are in the same degree of relationship, as others, those others are preferred and the direct ancestors are excluded. This rule appears to be based on the assumption that any such direct ancestors would be necessarily much older than the other relatives in the same degree. Therefore, (in the unlikely event) that a person dies with no other closer relatives, but with a surviving great grandfather and uncle (each in three degrees of relationship) the uncle is preferred to the great grandfather under the rules.
If it is not possible to ascertain the next of kin, the State takes the deceased’s assets as the ultimate intestate successor. The assets vest in the Minister for Finance. The Minister for Finance may waive the State’s rights in favour of third parties such as charities and other persons whom it might be apprehended, the deceased intended to benefit. Similarly, if a Will was invalid, the Minister for Finance might waive the State’s rights in favour of the persons whom it was intended to benefit.
Tracing Remote Relatives
A Court Order may be necessary to protect executors in the distribution of assets where there is uncertainty as to who is the next of kin. There are procedures for applying to Court to determine the distribution of assets, in cases of uncertainty, where a person has died without close or ascertainable relatives. In such cases, the Court may make Orders directing the steps to be taken, to ascertain the closest relatives. It may make requirements for advertisements and searches in various jurisdictions.
Ultimately the Court may order a division of assets, on the basis of the position, as it appears. If certain persons or classes of person, appear to exist, but cannot be found, the court may order that their share are paid into Court, for management until claimed. Alternatively, the Court may find that they are not traceable or do not exist or may be presumed dead. (There is a general presumption that if a person has not been heard from for seven years, by the persons with whom it would be expected he would be in contact, he may be presumed dead.
Contracts to seek heirs and next of kin based on the sharing of inherited benefits are void under Irish law.
Grant of Administration
The entitlement to take a grant of administration (the official authorisation to the personal representative to act as such) lies with the person with the principal entitlement to the assets. The entitlement to take out the grant of administration is said to “follow” the interest (the entitlement to the assets themselves).
Where there are several persons equally entitled (e.g. where there are a number of children of a deceased) the first person to apply for and take letters of administration becomes the personal representative.
In the case of an intestacy, the official permission to act in administering and distributing the estate is called the grant or letters of administration. The person with the entitlement to apply (generally the person with the closest interest) obtains the grant from the Probate Office or in a contested case, Court. That person is then obliged to pay the deceased’s debts and liabilities and distribute the deceased’s estate in accordance with the intestacy rules.
The rules on intestacy apply where property is not fully disposed of by Will[ If, for example, a person makes a Will, but it is invalid either in form or because of duress, undue influence etc the will be of no effect and the intestacy rules will apply. Where a person makes a Will, but it does not effectively dispose of all of his assets, the intestacy rules apply.
The deceased may have left assets to a person who has predeceased him leaving no children. The Will may not specify what is to happen in this circumstance and who is to inherit. In this case, the will is to apply insofar as possible. However, the intestacy rules will apply to the part not disposed of. In this case, the executor applies the intestacy rules and a separate grant of administration is not required.