Disclaiming will and issues with inland revenue affidavit submitted to probate office

[andyrobs]

I have a question around disclaiming wills and probate.


My brother and I were named as joint beneficiaries in my late uncle’s will. His only asset was his house worth about 45,000 euro.


We have both decided to disclaim and have completed the disclaimer letters with the appointed solicitor. We did not disclaim in favour of any one else – so there should be no CAT issues. Neither of us live in Ireland and never have.

I assumed this meant that my uncle was therefore effectively intestate – so his estate would pass to his nearest next of kin under the 1965 succession act (i.e. his two surviving sisters - one of whom has also disclaimed).


On the advice of our solicitor the other aunt signed the inland revenue affidavit (as in effect she is the sole beneficiary now) and this was submitted to the probate office. The probate office have written back to the solicitor saying this is not correct and that they can only act as power of attorney for my brother and I but not be executors themselves? We are now being quoted 1800 euro by the solicitor to prepare a power of attorney document to proceed forward?


Surely this cannot be correct. We have disclaimed and have no further interest. Its now surely solely a matter for my aunt as beneficiary under the succession act and the solicitor?


We are a little concerned that we are being given incorrect info by the probate office/solicitor. Would welcome any advice.

 

[mathepac]

Who were the executors and how many solicitors are involved? One for you and one for the executors? If you are beneficiaries AND executors then the waters muddy somewhat.

 

[andyrobs]

We were both named as the sole executors and beneficiaries but disclaimed both roles by signing two different disclaimer documents. Therefore surely we have therefore no further direct role?

You can't surely be forced to be an executor and/or beneficiary if you don't want to?

My aunt lives in Ireland and was happy in any case to take on the role and inherit the property.

There is only one solicitor involved for the whole process.

 

[Vanilla]

You are mixing up two issues- renouncing and disclaiming.

You have disclaimed your entitlement to benefit under the will. Have you also renounced as executors? These are two separate matters.

If you haven't renounced, then you are still executors. As you are out of the country, you can appoint the solicitor as your attorney to extract the grant on your behalf. Or if you have renounced it goes to the next person entitled- as per the Succession Act and court rules.

Naturally the solicitor will charge to extract the grant, they are hardly going to do it for free?

 

[andyrobs]

You are mixing up two issues- renouncing and disclaiming.

You have disclaimed your entitlement to benefit under the will. Have you also renounced as executors? These are two separate matters.

If you haven't renounced, then you are still executors. As you are out of the country, you can appoint the solicitor as your attorney to extract the grant on your behalf. Or if you have renounced it goes to the next person entitled- as per the Succession Act and court rules.

Naturally the solicitor will charge to extract the grant, they are hardly going to do it for free?

We have disclaimed our entitlement to benefit under the will AND renounced as executors. Hence the the two separate documents.

As we have done both as you say - the estate goes to the next person entitled under the Succession Act - my aunt (my other aunt also disclaiming). She is happy to be executor and beneficiary.

I think perhaps our solicitor has not made this clear to the probate office - we have renounced and disclaimed. I have no issue with paying appropriate fees but I dont see why we need to pay 1800 euro to the solicitor for a power of attorney (i.e. for my aunt to be granted power of attorney to act for us) as he has advised which was the question asked?

She is the beneficiary and executor now - so why would she need power of attorney to act for us?

 

[Vanilla]

You can't just decide to be executor, even if you are the beneficiary. So your aunt may not be entitled to act.

 

[andyrobs]

You can't just decide to be executor, even if you are the beneficiary. So your aunt may not be entitled to act.

So who can do this if everyone named in the will has renounced and disclaimed and she is the next in line (i.e. closest living relative) under the succession act. Logically she is the only logical person and she wants to do it - and no one else does? If she can't - who can?

 

[Vanilla]

Rules of the superior court govern who can step in to next in line- as above, you cannot just choose. Your solicitor will advise. And sounds as if they already have- ie give your aunt Power of Attorney to act for you.

 

[andyrobs]

Thanks for the advice so far.

We were advised by our solicitor we had to both disclaim as beneficiaries AND renounce as executors - as otherwise my aunt could not become the beneficiary as next in line via the succession act.

We would have been fine to continue just as executors if need be. Could we not simply carry on as executors - rather than waste 1800 euro on the cost of this power of attorney so my aunt can act for us so she can inherit?

Also I applied for power of attorney for my father in the UK - it costs £110. How on earth does it cost 1800 euro for a solicitor in rural Ireland to do this - sounds excessive?

Sorry if I am rather bemused by this - surely my solicitor should have known about this issue before submitting the affidavit if he even had a basic understanding of Irish probate law?

 

[andyrobs]

Sorry to follow up on my questions.

My brother and I were the only people referenced in my uncle's will - as executors and beneficiaries. We have disclaimed as beneficiaries and renounced as executors and did this before any probate application was made. Therefore my uncle's estate falls under intestacy rules doesn't it as we are treated as essentially having 'died' before my uncle in a legal sense arent we?

His closest surviving relative under the succession act is my aunt - his sister - as he has no spouse, never had children and his parents are dead. Under the 'court rules' in the case of intestacy surely she can apply for a grant of administration via a solicitor? So why do we need to give her power of attorney and pay 1800 euro for the privilege to act for us in a role we have renounced?

It makes no sense at all - we have disclaimed as beneficiaries and renounced as executors and were happy to pay for the costs of those documents. So why do we still have any legal role and why cant my aunt simply act on intestacy grounds.

 

[PaddyBloggit]

With the amount being so small why not take the inheritance and then write a cheque to your aunt?

 

[andyrobs]

With the amount being so small why not take the inheritance and then write a cheque to your aunt?

I have no wish to see my aunt out of pocket - although she is going to inherit a house that might otherwise have gone to us so it's not so bad. But we have already disclaimed so academic.

What I am asking is why we need to enrich the solicitor by 1800 euro for something which does not appear necessary? The estate is intestate as all those named in the will have renounced and disclaimed. So our role - as the two named in said will - surely is done?

Why do we need to give someone power of attorney to act for us in a role we have renounced when said person is the legal successor by virtue of being the nearest relative and surely can seek a grant in their own right in the case of said intestacy?

We are trying to do the right thing - what we aren't keen to do is overly enrich our solicitor if it's not necessary. Hence us seeking views here?

 

[noproblem]

How do you think your aunt is going to get the property into her name? Probate will have to be taken out for her to own the house, otherwise it won't be hers to sell or whatever. However, this costs money.

 

[andyrobs]

How do you think your aunt is going to get the property into her name? Probate will have to be taken out for her to own the house, otherwise it won't be hers to sell or whatever. However, this costs money.

Who said anything about not paying for probate - it's not about that at all?

It's about paying an extra 1800 euro on top of the standard probate fees for her to be given power of attorney to apply for probate on our behalf when she should be able to apply directly as the nearest relative in a case of intestacy as those named in the will have all renounced/disclaimed.

We have already paid fees for the disclaimers and renunciation as were were told this was sufficient and that was all we needed to do. Our aunt then legally inherits under the succession act. Now the solicitor is asking for 1800 euro more for something which he never stated would be required?

We don't want to rip off our aunt - we merely want to avoid being ripped off by the solicitor. Hence our question!

 

[cremeegg]

Having renounced your role as executors, you are not in a position to give your aunt power of attorney to act as executor on your behalf.

What I wonder could the €1,800 really be for ?

 

[andyrobs]

Having renounced your role as executors, you are not in a position to give your aunt power of attorney to act as executor on your behalf.

What I wonder could the €1,800 really be for ?

Thank you – I agree.


My aunt’s solicitor – who also acted for us – submitted the Affidavit with her signature to the probate office. They then wrote back saying that she couldn’t apply for the grant as we were named executor in the will – but she could if we gave her power of attorney. But as you say we have renounced as executors.


I assume there is a mix up – and the solicitor has submitted the will with the CA24 IR affidavit but not advised the probate office of the renunciations and the probate office have misunderstood?


Not the probate office’s fault – but I am concerned the solicitor is seeking to charge us 1800 euro plus vat for something that is not just unnecessary but pointless. But he makes 1800 euro. 1800 euro also seems excessive as you can get lifetime powers of attorney in Ireland fixed fee for 500 euro or less - not just this one off for a probate application?


My aunt should be able to apply in her own right as legal next in line under the 1965 succession act in the case of intestacy – as this now is. So what is the point of the power of attorney?

 

[noproblem]

Who said anything about not paying for probate - it's not about that at all?

It's about paying an extra 1800 euro on top of the standard probate fees for her to be given power of attorney to apply for probate on our behalf when she should be able to apply directly as the nearest relative in a case of intestacy as those named in the will have all renounced/disclaimed.

We have already paid fees for the disclaimers and renunciation as were were told this was sufficient and that was all we needed to do. Our aunt then legally inherits under the succession act. Now the solicitor is asking for 1800 euro more for something which he never stated would be required?

We don't want to rip off our aunt - we merely want to avoid being ripped off by the solicitor. Hence our question!

Maybe, just maybe, the solicitor is going for the probate and this €1,800 is the fee? Otherwise, you guys need to have a face to face chat with him.

 

[andyrobs]

Thanks for everyone's help on this.

I now feel pretty confident to go back to the solicitor and explain why power of attorney is not appropriate or needed.