# Probate and Responsibility of the Executor



## Lottowinner (21 Mar 2010)

Q1:What are the consequences if probate is not taken out on a Will i.e. the will is never probated?
Q2:Should the executor (In my case not a beneficiary) insist that the beneficiary take out probate even though the beneficiary doesnt want to be bothered with taken out probate ?


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## Padraigb (21 Mar 2010)

1. The ownership of the assets is not fully cleared up; same with responsibility for debts. In practical terms, these things can be dealt with informally, with the exception of real property: you can't sell or transfer ownership of a house without a grant of probate or letters of administration.
2. No executor is obliged to act, but a nominated executor cannot order anybody else to act in his or her place. It might be wise for a beneficiary to take some action, or get somebody to act on his or her behalf.


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## Lottowinner (21 Mar 2010)

So with reference to Q1, there will be an issue when a house or land left to a beneficiary in a Will which is not probated, when it comes to be sold or inherited by the next generation of the beneficary?

The reason I ask the question is that my grandfather left his home (and cut his wife out of the will) to my aunt approximately 23 years ago but has since not probated the will. My aunt will Will it to whom ever she wishes (she is a spinster in her 60's)but will her Will be void if my grandfathers Will is not probated in the meantime ?

Another question, are the beneficiaries contacted as part of the probate process in order to approve or contest any aspect of the Will?


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## Padraigb (21 Mar 2010)

Lottowinner said:


> So with reference to Q1, there will be an issue when a house or land left to a beneficiary in a Will which is not probated, when it comes to be sold or inherited by the next generation of the beneficary?



That is how I see things.



> The reason I ask the question is that my grandfather left his home (and cut his wife out of the will) to my aunt approximately 23 years ago but has since not probated the will.



Stop right there! I see a possible problem, as he was probably not entitled to leave his wife out of the will. Under the Succession Act, she had an entitlement to at least one-third of his estate. That is possibly why the will was not probated.



> My aunt will Will it to whom ever she wishes (she is a spinster in her 60's)but will her Will be void if my grandfathers Will is not probated in the meantime ?



No, her will will not be void. But her father's will will have to be dealt with as a step on the way to dealing with hers. The rights of your aunt's mother will have to be addressed, and it could all be a bit messy, especially if there is bad feeling somewhere in the family.



> Another question, are the beneficiaries contacted as part of the probate process in order to approve or contest any aspect of the Will?



It's all a bit unclear. When probate is granted, the will becomes a public document. But there is no prescribed procedure for notifying beneficiaries or anybody else who might have an interest (except for the Revenue Commissioners).


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## lawrose (22 Mar 2010)

> there will be an issue when a house or land left to a beneficiary in a Will which is not probated, when it comes to be sold or inherited by the next generation of the beneficary?



Yes.  It will be messier for the beneficiary of your aunt's will because they will have to extract two grants of probate - your grandfather's and your aunt's.  It would be far better for your aunt to tidy up these issues now by taking out the grant herself and having the property put into her name.



> my grandfather left his home (and cut his wife out of the will) to my aunt approximately 23 years ago but has since not probated the will.


Normally, a spouse has a "legal right share" to one third of their spouse's estate where there are children (one half where there are no children) and where there is a will.  The spouse who is left nothing in the will has six years from the date of death to make a claim for their legal right share.  Your grandfather passed away over 20 years ago, and so your grandmother could not make a claim for her one third share now.  



> My aunt will Will it to whom ever she wishes (she is a spinster in her 60's)but will her Will be void if my grandfathers Will is not probated in the meantime ?


 
No, her will won't be void.  It's just messy as set out above.  



> Another question, are the beneficiaries contacted as part of the probate process in order to approve or contest any aspect of the Will?


 
Generally, once the executor has been notified and has agreed to act, the beneficiaries are notified in writing of their inheritance and they can be sent a copy of the will (depends on the executor and solicitor - some always do, some don't like to).  The beneficiary's approval is not sought as part of the probate process.  If they are unhappy with anything in the will, they are entitled to seek legal advice themselves.  If the beneficiary is a spouse or child, they may have the right to seek a share of the estate.


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## Padraigb (23 Mar 2010)

mf1 said:


> ... If a beneficiary is unhappy with what an executor is telling them they can always seek their own legal advice....



It is not simple for a beneficiary to challenge an executor's actions, or even to get an account of how the estate is being (or has been) administered.

For that reason, the nomination of an executor is something that should be considered very carefully. It should be somebody who is trusted (obviously by the testator but also, insofar as the testator can judge, by the beneficiaries) and who has a set of competencies required for the work.


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## mf1 (23 Mar 2010)

Padraigb said:


> It is not simple for a beneficiary to challenge an executor's actions, or even to get an account of how the estate is being (or has been) administered.
> 
> For that reason, the nomination of an executor is something that should be considered very carefully. It should be somebody who is trusted (obviously by the testator but also, insofar as the testator can judge, by the beneficiaries) and who has a set of competencies required for the work.



I notice in my own office that when big issues arise in cases such as these, it is usually symptomatic of years of inter family aggro! 

I can usually spot the ones that will move smoothly and easily marked by agreement and co-operation between all the parties and those that lurch from crisis to disaster, marked by aggression ( sometimes as early on as at the graveside!), Judge Judy like correspondence and Jerry Springer style histrionics - it can come from either the beneficiaries or the executor.   

Where there's a will there's usually a family! 

mf


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## Padraigb (23 Mar 2010)

mf1 said:


> ...  There are no set "required competencies" for being an  executor.



Yes and no.

There isn't a precisely-defined skill set involved, but an executor needs to have some capacity to understand and operate within a legal framework, have at least a rudimentary understanding of the tax system, be able to deal with financial institutions and state agencies, perhaps be able to do a bit of forensic investigation into the deceased's business affairs, know how keep proper financial records, and a few other things.

Such things are almost second nature to a solicitor in practice, but they are competencies.



> Very often aggro between executors and beneficiaries has more to do  with dashed expectations than real issues.



Agreed. But it's very often, and not invariably. The Probate Court normally does not scrutinise the administration of estates, and an executor who is careless, inefficient, or dishonest can get away with a lot.

In my opinion, it would be a good thing if an executor or administrator were required to file an account of how an estate was dealt with.


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