Process for a spouse to appropriate the family home in case of intestate

[Alex Drake]

My Father died last year leaving no will, the house was solely in his name along with some modest savings. There are three grown up children two of whom are more than happy to renounce their right of their share in the house. However, my sister is not prepared to do this, and is also unwilling to accept fair market value for her share in the property. This has left my Mother very worried that when probate is finished, she may not end up 100% owner of her home. Because of this probate has yet to begin on my Father's estate. She has gone to several solicitors, but none have answered the question. We have also contacted the Probate Office directly but they claim they are not familiar with the process and just advised us to ask a solicitor. We know she has the right to appropriate the house as this is stated in the Succession Act 1965 in section 56. However, we do not know how this process is carried out. Is it automatic once probate is finished or is there an application form to fill out? Could it be as simple as sending written instructions to the Probate Office stating your wish for it to be carried out or is a court vist necessary?

Any help would be greatly appreciated.

 

[Vanilla]

She has gone to several solicitors, but none have answered the question.

I find this very hard to believe. Why go to several? Has she appointed a solicitor to extract the grant of administration?

She needs to take legal advice specific to the circumstances.

 

[Alex Drake]

I can ensure you its completely true. To clarify, my mother enquired as to her rights in this case and no solicitor informed her of her right to appropriate the family dwelling. When she queried this (quoting section 56), no solicitor provided any information on how, where or when the process needed to be conducted (despite admitting it was possible), and in fact seemed completely unfamiliar with the process. Because of certain time restrictions that begin when a grant of administration is taken out (subsection 5a), she wishes to be assured that any solicitor she engages with will be familiar with and competent in carrying out this procedure. Once she gets a answer regarding how the process is carried out she will gladly give the case to a solicitor to extract the grant of administration etc.

I don't wish to tar the whole industry due to a bad experience with a handful of its members, but to be honest I have been amazed that it has been so difficult, up to this point, to get an answer to a relatively simple question.

 

[Vanilla]

If she hasn't appointed someone to deal with the estate, how does she expect anyone to be able to give an answer? The answer demands and depends upon being familiar with all assets/ liabilities/beneficiaries etc.

Clearly you/she have been reading through the Succession Act but evidently you don't understand it.

If you are genuinely worried about getting a solicitor who is experienced in estates, I would suggest finding a member of STEP ( www.step.ie).

 

[Alex Drake]

If she hasn't appointed someone to deal with the estate, how does she expect anyone to be able to give an answer? The answer demands and depends upon being familiar with all assets/ liabilities/beneficiaries etc.

Aside from this one issue its a fairly straight forward estate, with just one property, a dwelling house, and a relatively small amount of savings, all of which is in my fathers sole name. There is no debt or mortgage on the house. There is enough savings to reimburse my sister for her 11% share of the property, although it is my understanding this may not have been necessary if my mother was in a situation where she didn't have the funds to pay my sister (subsection 10b), but it certainly should make the process easier. Since this is a case of intestate there is only 4 beneficiaries, whose share in the estate is stated clearly in law. All solicitors were made aware of these and other details.

Clearly you/she have been reading through the Succession Act but evidently you don't understand it.

I'm not sure what gave you that impression, what have I said that is incorrect or makes you think that I don't understand the act? The legislation clearly states that a right for the spouse to appropriate the family home exists, which surely is the only relevant piece of information in relation to the thread topic. The legislation, of course, doesn't state the process on how this right is exercised, which is the cause of concern at the moment.

If you are genuinely worried about getting a solicitor who is experienced in estates, I would suggest finding a member of STEP.

Thanks for the link, I will look into it.

 

[Vanilla]

I'm not sure what gave you that impression, what have I said that is incorrect or makes you think that I don't understand the act?

There's far too much in what you have said to give you an indepth analysis. It's the difference between the law and the practice.

 

[Alex Drake]

There's far too much wrong in what you have said to give you an indepth analysis. It's the difference between the law and the practice.

Certain sections of the law can give an absolute right though, and the right to appropriate seems like one to these to me (solicitors have agreed with this), which is really the only thing I said regarding the legislation.

 

[Bronte]

Certain sections of the law can give an absolute right though, and the right to appropriate seems like one to these to me (solicitors have agreed with this), which is really the only thing I said regarding the legislation.

Alex you're making things way too complicated. You need to hire a solicitor, it doesn't matter how they do their work as long as they sort it out for your mother. The legislation says your mother has a legal right share of 1/3 (please double check) and the other 2/3 goes between 3 of you. So on a 300K estate your mother is entitled to 100K worth plus the share two of you are willing to give up about 70K each. So your mother's full share is 240K about. The other sibling has to be paid about 70K.

I'm sure the work the solicitor has to do will include valuing the property, collecting all assets and filling out forms for the probate office. Why do you need to worry about the procedure.

Your mother wants in lieu of her share of the estate to instead 'appropriate' the family home and she has the right to do so.

Your case is a sorry tale of a father not sorting out a will before he died leaving your mother with a fine mess. And even sorrier is the fact that a sibling will not renounce their share in such circumstances.

The above is only a posters viewpoint of your situation, you need to hire a solicitor and get on with it. You cannot expect full legal advice on here.

 

[Alex Drake]

Thanks for the advice Bronte, you make a lot of good points. The reason why my mother is so cautious handing the case over (as much as she would love to, its been nothing but a headache) is because she did in fact appoint a solicitor to deal with the case shortly after my father died, that solicitor stated a number of times that the relevant documents were lodge and probate would soon be finish but we have recently found out that no documents have been lodged in the probate office and that we are no further in the process than we were at the start. As you can imagine that betrayal of trust has been incredibly frustrating and does make you more wary of who handles the case in the future. But as you suggest the best option may just be to find another solicitor and trust that lightning won't strike twice.

I just have to take issue with one thing you said though. As far as I'm aware the spouse is entitled to two thirds of the estate, I can't post links, as I have less than 15 posts, but on the citizen information website under "What happens the deceased's estate" it mentions at the bottom of the article that the spouse is entitled to two thirds of the estate. I think you may be thinking of a case where there is a will, in that situation the spouse must be given at least one third of the estate - that is mentioned in the same article under the heading "The legal right share".

 

[Bronte]

. The reason why my mother is so cautious handing the case over is because she did in fact appoint a solicitor to deal with the case shortly after my father died, that solicitor stated a number of times that the relevant documents were lodge and probate would soon be finish but we have recently found out that no documents have been lodged in the probate office and that we are no further in the process than we were at the start.

You never stated before that your mother had actually hired a solicitor. And it makes this story completely different. What month was the solicitor hired? Who told you documents were lodged and who then informed you no documents had in fact been lodged.

Did you agree a fee with this solicitor and did you get a Section 68 letter?

 

[Alex Drake]

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