# Probate and Banks



## mocky-Dower (28 Mar 2008)

Hi There,

My mother died last October, she left her house to her children and some money she had in the bank to her grandchildren (all was to be divided equally) she stated all of this in her Will, in the will she made a relative of hers (who happens to be a solicitor) the executor. 

We got a letter from the executor (the solicitor) saying that the bank would not release the money from the bank account because my mothers estate exceeded €25,000, and that probate proceedings would have to be issued. 

Fair enough. However, my mother had her house paid for i.e. no mortgage with the bank in question and the money she had in the savings account was €15,000, so why the probate proceedings? Is it to legally transfer the deeds of the house to her children ?

A little worried as regards the bill for the solicitors work regarding probate and with the relative link we hadn't asked about how much he will charge

Thanks.


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## murphaph (28 Mar 2008)

mocky-Dower said:


> Hi There,
> 
> My mother died last October, she left her house to her children and some money she had in the bank to her grandchildren (all was to be divided equally) she stated all of this in her Will, in the will she made a relative of hers (who happens to be a solicitor) the executor.
> 
> ...


All wills have to go through probate to make sure they are valid. A will is just a set of wishes, not a list of instructions, so it has to be examined to see that it is legal and valid. The probate office decide if a will is valid and then grant probate to the executor which allows that person to lawfully gain access to the deceased's estate and get property conveyed into the new owner's name etc. A bank is correct not to release a sum as large as 15k to someone who doesn't have the lawful authority to gain access. My dad died recently and it's in probate now however is moving very fast and they are about to issue letters of administration (because he died intestate, there's no executor, there's an administrator but it's similar). Good luck.


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## mocky-Dower (28 Mar 2008)

Thanks Murph, There no problems with this and I suppose its better to get this sorted correctly, its just that I thought a Will was a legal document and its sounds like with probate you have to get another legal document, and the fact that my mothers house was paid for (mortgage was cleared) that this would not concern the bank who initiated the probate when the solicitor tried to release the 15K for the grand children.

What if she owned a classic car that was worth 30K and the bank knew nothing about this and our solicitor went to the bank to release any savings, would they insist on probate in that situation?

Thanks


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## mathepac (28 Mar 2008)

mocky-Dower said:


> ... I thought a Will was a legal document and its sounds like with probate you have to get another legal document...



I think you are confused. A *will* is a document where a testator expresses his or her *wishes* as to how they want their assets distributed after their death.

To give the will legal standing, an application is made by, or on behalf of, the executor to the Probate Office to have the will *"proven"*. Once probate is granted, the will is now classified as proven. Then, having dotted and crossed all the requisite legal and financial i's and t's, the executor is clear to gather up the assets of the testator, pay off any outstanding creditors, and distribute  the residue to the beneficiaries, based on the contents of the will.



mocky-Dower said:


> ... and the fact that my mothers house was paid for (mortgage was cleared) that this would not concern the bank who initiated the probate when the solicitor tried to release the 15K for the grand children.
> 
> What if she owned a classic car that was worth 30K and the bank knew nothing about this and our solicitor went to the bank to release any savings, would they insist on probate in that situation?...



I doubt if the bank "initiated the probate". I believe they may have requested proof of grant of probate from the executor, so they were assured of his legal standing in order to gather up the testator's assets.

Disposal or distribution of any of the testator's assets by the executor is illegal until probate is granted and if it happens the executor may be personally liable for any resultant losses.

I don't understand point about the house being mortgage free or the issue in relation to a classic car as none of these assets would have been under the control of the bank.

Where I would be concerned is if the solicitor / executor is trying to gain control of or distribute assets before the grant of probate, or as you seem to imply, not understand the process.


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## mocky-Dower (28 Mar 2008)

Thanks Mathepac,

This makes it a lot clearer as regards the need for probate, it makes more sense now, as regards the classic car, I was trying to say that she would have had assets in excess of 25K (bank would no nothing about the Classic Car, but the deeds of the house are with the bank in question) and in that case would the bank want "proof of grant of probate from the executor" . 

Just on the side, do *all* wills have to go through probate of is is only when they exceed 25K ?

Thanks for you help on this.


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## murphaph (28 Mar 2008)

mocky-Dower said:


> Just on the side, do *all* wills have to go through probate of is is only when they exceed 25K ?


If a will is to be made legal it must be examined and "proven" by the probate office. I'm sure many wills never see probate owing to there being so few assets that survivors aren't bothered with it. A bank may release small amounts of savings to the next of kin with just a death cert and no grant of probate but for larger sums they will not. To transfer a house etc. to a survivor would require probate also.


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## mocky-Dower (28 Mar 2008)

Thanks Lads, a lot clearer now, it might wreck people's heads when they hear about all this probate stuff, but when its explained and you think about it make a lot of sense. I was going to mention the Mahon Tribunal  . . . no, wont go there.

I think most lay people think that once a will is made thats it, the assets are distributed and that's it.

Anyway, Thanks, that's that cleared up, just wait for the bill to come in.


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## mercman (28 Mar 2008)

mocky - I think it may be best if you were to contact the Probate Office to request them to explain the process. Of all things it transpires that the rules and laws in relation to wills, probate etc in this country are clear, straightforward and do not lean in favour of any section of society.


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## mocky-Dower (29 Mar 2008)

Yes I might do that to see where it's at in the process, I'm glad that "rules and laws in relation to wills, probate etc" are "straightforward" maybe it might rub off on some of the other rules and laws.


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## dewdrop (29 Mar 2008)

just two small points...firstly most  banks will release funds to pay for funeral expenses before extraction of probate on production of receipts. way in the distant past i recall being told that anyone who intermeddles with the assets of a deceased before probate can be liable for an action by a beneficiary. in other words if assets were disposed of to a certain party then the other beneficiaries could take action against the person who released the assets


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## mathepac (29 Mar 2008)

Yes dewdrop, As executor of my late father's estate, his bank allowed me to draw down payment of his funeral expenses (his wish) on production of :

a) a copy of his will
b) a letter from his solicitors
c) a copy of his death certificate
d) original invoices from undertakers, caterers, etc.
e) signed agreement of the other beneficiaries
f) my passport and birth cert

but at the time the sums were small relative to those cited by OP above and our family was well known to staff in the branch (for positive reasons, TG!)


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## putsch (29 Mar 2008)

I don't want to move this off topic but I want make a correction. It is stated in an earlier post that "all wills must go to probate" - THIS IS NOT CORRECT.

Wills must go to Probate when there is real property (eg house and lands) in the sole name of the deceased and/or there are other assets (eg bank accounts, insurance policies) that exceed limits laid down by the institution holding that asset. This varies by institution so that for instance the Post Office require probate for very small amounts (ironic since its often people with small assests who have a Post Office account). Though I know the Post office are seeking to have this changed.

In summary - the postion has to be looked in each case. 
Is there a will? 
How much are the assets worth? 
Where are they held? 
Have they been nominated? 
Are they in joint or sole names? 
Is it a life interest? etc etc. 

So unfortunately, as with so much else-the answer to the question of whether probate is required is "it depends".


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## murphaph (29 Mar 2008)

Sorry, maybe I wasn't clear when I said "all wills must go to probate to make sure they are valid". Perhaps I should have said "for a will to be legal it must go though probate".


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## putsch (29 Mar 2008)

murphaph said:


> Sorry, maybe I wasn't clear when I said "all wills must go to probate to make sure they are valid". Perhaps I should have said "for a will to be legal it must go though probate".


 

No that's not the case. 

A will can be perfectly "legal" and have no need for probate. The question of a will's validity or legality and the need for probate are two very different issues although clearly an invalid will won't be able to be probated. A valid ("legal") will can be acted upon without probate unless it actually needs to be probated for any of the reasons I set out in previous post (and perhaps others I have forgotten to include). Probate is a mechanism for executing a will in certain circumstances.

Wills are acted on all the time without the need for probate. Most common would be where a property is jointly owned between husband and wife and there is a small bank account if one party dies leaving all to the other the joint property goes by survivorship and the small account will go by the will with no need at all for probate.


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## murphaph (29 Mar 2008)

putsch said:


> Wills are acted on all the time without the need for probate. Most common would be where a property is jointly owned between husband and wife and there is a small bank account if one party dies leaving all to the other the joint property goes by survivorship and the small account will go by the will with no need at all for probate.


I thought 'right of survivorship' has nothing to do with wills at all and was to do with when a person dies and the property they owned was owned as 'joint tenancy' with another and the property simply stays out of probate because of this. The property doesn't pass to the surviving spouse because of anything written in the will, it passes by a completely seperate mechanism which means nothing written in a will can alter the survivor becoming sole owner-so the will doesn't need probate because the will is irrelevant in that case.

Am I wrong?


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## putsch (29 Mar 2008)

Correct insofar as right of survivorship normally acts outside will. However sometimes it needs to be specifically addressed in the will if the joint tenancy (or joint bank account) could actually be implied to be a tenancy in common (and these are now more common than in the past in non husband and wife situations). The reference to it in the post was merely an illustration of a common situation not requiring probate. 

The main point I was making was that assets can be legally devised by will without probate being necesssary. Whether probate is necessary depends on the specifics of the situation and is not required in all situations which was the implication of the earlier post. I only address this as it may be confusing to those many people who have have inherited assets on the basis of a valid will without taking out probate.


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## murphaph (30 Mar 2008)

putsch said:


> Correct insofar as right of survivorship normally acts outside will. However sometimes it needs to be specifically addressed in the will if the joint tenancy (or joint bank account) could actually be implied to be a tenancy in common (and these are now more common than in the past in non husband and wife situations). The reference to it in the post was merely an illustration of a common situation not requiring probate.


If a tenancy in common could be implied and a will is required to ensure it seen as a joint tenancy, then wouldn't that will need to go through probate to establish the validity of the will?


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## Hasslehoff (19 Apr 2008)

From a practical point of view how do you get to see a will if it does not go through probate ? I Would then assume you ask the executor if known, but if they refused?


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## Vanilla (19 Apr 2008)

Hasslehoff said:


> From a practical point of view how do you get to see a will if it does not go through probate ? I Would then assume you ask the executor if known, but if they refused?


 
Only the executor ( if living) has the right to see the will and to distribute copies. Beneficiaries are entitled to know only the part of the will that relates to them. 

If the executor has died there is a list of people laid out in the law who can succeed.


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## Black Sheep (19 Apr 2008)

Sorry to go a bit off the thread but my friend has been asking me about probate. Her husband died intestate several years ago and nothing has been done since about his estate. 
At the time of his death both their children were adults and were living away from home. Does she now need to do the probate. The main asset is the family home which I assume is joint names and some investments (nothing sereious)
Does she need to re-register the family home in her own name


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## putsch (19 Apr 2008)

If the house was in joint names only a death certificate will be needed and then probate will only be required if there are assets in the deceased own name that are either: real property (land, houses etc) or substantial bank accounts/life policies or similar. There is no one amount that qualifies as "substantial" - for some institutions its c.25K but for the post office for example its about 8K.
If she hasn't had to get probate so far and if the house is in joint names she probably doesn't need it. But to be sure she should consult a solicitor.


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## Black Sheep (20 Apr 2008)

As my friend now wishes to make a will can she will the house (that is still in joint name with her deceased husband) to one of her sons.


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## Vanilla (20 Apr 2008)

Yes.


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