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Frequently Asked Questions

What are the Steps in Buying a House?

Introduction

Moving house can be a stressful and anxious occasion.  Buying your home is likely to be the single largest investment you will make in your lifetime.  It is important therefore that you seek professional advice and assistance prior to buying your home.

Spending Power

Before you start house hunting you will need to calculate roughly what you can afford to spend.  In the vast majority of cases, it will be necessary to borrow by taking out a mortgage.  If you already own your existing home and intend to sell it, any equity (sale price less existing mortgage and legal costs/expenses) that you have in your home can be put towards the purchase of your new home, reducing, and in exceptional cases, eliminating your borrowing requirements.  You may also have savings to put towards the purchase of your new home.

New or Second-Hand House?

Once you have calculated the amount of money you are prepared to spend, the next step is to decide on what type of house you wish to buy and where you want to live.  You should check what facilities are available in the area in which you wish to buy. For example, schools, shops, public transport, etc.  You should also investigate the surrounding environment and what is planned for its future (as per the Local Authority Development Plan for the area).  For instance, you should ascertain the location of green belts and what road and other developments are planned now and for the future. This information can be obtained from the Planning Office of your City or County Council.

When searching for your new home it is helpful to have a list of your particular requirements including:

  1. Price;
  2. Location and Surroundings;
  3. Rural or City (detached, semi-detached or terraced);
  4. Schools;
  5. Public Transport;
  6. Number of Bedrooms;
  7. Garage;
  8. South or West facing?
  9. Kitchen size/House contents included (eg. cooker, fridge, carpets, curtains etc.);
  10. Garden size?
  11. Newly Constructed House – allowances for, tiling, fire place, fitted kitchen, etc;
  12. Type of heating required (gas, oil fired central heating or other);
  13. The Building Energy Rating (BER)
  14. Burglar alarm?

Negotiations

Once you have found the desirable house it is now time to negotiate a price.  If you are not familiar with this type of negotiation it can be a difficult experience.  Your solicitor can help you in this regard by conducting negotiations for you, on your express authority.  Once your offer has been accepted it is recommended that you contact your solicitor for the purpose of placing a deposit on your new home with the seller’s representatives.  Your solicitor will forward this deposit “Subject to Contract” ( and subject to any other requirements you may have agreed) which means, save in exceptional circumstances, that at any time up to the signing of contracts you can withdraw from the purchase without losing your deposit.

Whether you are buying a new or a second-hand house it is highly recommended that you have a structural survey carried out on the property. You should note that the surveyor/valuer appointed by your Lender will only carry out a valuation on the property and not a structural survey.  As this valuation report is prepared for your Lender, you cannot generally rely on it. Your solicitor can assist you in making arrangements for a civil engineer to carry out an inspection of your proposed new home for the purpose of obtaining a structural survey report. In the case of a new house your engineer should be instructed to inspect the house at various stages of construction.  In the case of a second-hand house it is recommended that your structural survey be completed on or prior to the signing of contracts.

Mortgage Finance and Insurance

On or prior to the signing of contracts you should have a formal Letter of Offer of mortgage finance from your Lender.  Typically you will be required to take out a Mortgage Protection Policy or an Endowment Life Policy depending on the type of finance being obtained.

Whether you are obtaining a mortgage or not, it is important that you put in place house and contents insurance for your new home.  Your house insurance should be for an amount equivalent to re-instate and re-build your home (to include site clearance and removal costs) should it be destroyed by fire etc.  This figure should also be sufficient to cover legal, architectural and other fees payable to relevant professionals.  Most insurance companies now also include within their Buildings/House Insurance Policies automatic insurance cover for contents.  In some cases expensive items of jewellery, computer equipment etc. may need to be listed specifically on your home insurance. You should also arrange public liability insurance cover for your new home

Contract Signing

The signing of contracts occurs when you sign the contract for the purchase of your home, the seller similarly signs the same contract and they are then exchanged between the respective solicitors.  Your deposit will be handed over to the seller’s solicitor on the signing of the contracts.  The transaction to buy your new home is now legally binding upon you, subject to the terms and conditions of the contract.  If you fail to complete (i.e. go through with) the purchase after signing unconditional contracts, you may risk losing your deposit and in certain cases you may also be liable for any loss suffered by the seller.

Between signing of contracts and completion (i.e. getting the keys) your solicitor will investigate, in significant detail, the legal title (ownership) of the seller to the property being sold.  In addition, your solicitor will endeavor to investigate the planning history of your new home and seek evidence that all planning permissions have been complied with.

Completion

Your solicitor will deal with all the legal formalities on completion.  In addition to drawing- down your mortgage loan your solicitor will furnish you with a statement of the balance of monies required to complete the purchase.  This will cover stamp duty (if payable) and registration fees together with your solicitor’s costs and expenses and any balance due in addition to your mortgage loan to complete the purchase of the property.  In return for obtaining the title deeds (i.e. documents of ownership) and closing documentation to your new home from the seller’s solicitor, your solicitor will hand over the balance of the purchase monies in exchange for the keys to the property.  You should then arrange to collect the keys from your solicitor or the estate agent selling the property, as you are now the legal owner of your new home.  After completion your solicitor will attend to the stamping and registration of your title (ownership). When completed your solicitor will forward your title documents (i.e. documents of ownership) to your Lender where they will be held as security until your mortgage has been repaid in full.

Auctions

Auctions can be hazardous for the inexperienced buyer.  Generally, once the property is on the market for sale and an auctioneer accepts your bid you are legally bound to purchase and complete.  At auction you will normally be required to pay at least 10% of the auction price and you should have available funds at auction to meet this liability.  Before you attend and bid at auction you should ensure that the following have been complied with:

  1. Your solicitor has investigated the title (ownership) of the seller and has obtained appropriate searches, e.g. planning etc;
  1. Your mortgage has been arranged and you have a formal Letter of Offer on terms and conditions which you are satisfied you can comply with;
  1. You have had your own private structural survey undertaken for the property and you are satisfied with the report;
  1. You have an available deposit.

 Conclusion

With the above information, you are now ready to go house hunting.  Again do not forget to make your Will on purchasing your new home.

 

* This article covers, in a general way, some of the issues involved in buying property. In any particular case, you should seek specific independent advice, both legal and otherwise.

What's Involved in Selling my Home?

The sale of your family home, and in most cases the simultaneous purchase of your new home, can be a stressful and anxious occasion.  It is important therefore that you seek professional advice and assistance when selling your existing home and buying a further property.

  • Valuation/Auctioneer

In the majority of cases persons wishing to sell their home will appoint an auctioneer to sell the property.  Initially your auctioneer will inspect the property and indicate a price which the property will fetch on the open market.  It is then a matter for you, with your auctioneer, to agree a sale price for your home.  It is normal for fees to be negotiated and agreed at this time between you and your auctioneer.  In addition you will usually incur advertising expenses, sign costs and VAT.  When your auctioneer receives an offer(s) for the purchase of your property they should inform you immediately.  Ultimately when you accept a suitable offer, the purchaser will usually furnish your auctioneer with a booking deposit of in or around 2.5% to 5% of the agreed purchase price as evidence of the purchaser’s intention to complete the purchase.  It should be remembered that in most cases, until formal unconditional contracts for the sale of the property have been signed by the purchaser, the purchaser can withdraw from the purchase.  In such circumstances the purchaser is entitled to the return of any deposit paid, in full.  Similarly, you, as the vendor/seller, are not bound to sell the property until formal unconditional contracts have been signed by you.

  • Your Deeds

It is a good idea, at the time you are placing your property on the market for sale, to inform your solicitor that you are doing so.  Once informed, your solicitor will arrange to take up the original Title Deeds to your property from your Bank/Building Society, if your property is mortgaged.  To enable your solicitor to do this, you will have to sign an Authority, addressed to your Bank/Building Society, permitting your solicitor to take up the Deeds to your property. Your Bank/Building Society will charge an administration fee for sending out the Deeds.  The benefit of your solicitor taking up the Deeds early is that it facilitates your solicitor in acquainting himself/herself with your Title.  Also, draft contracts for the sale can be prepared so that when you agree a sale with a proposed purchaser there is no delay in obtaining your Title Deeds and getting contracts out to the purchaser’s solicitor.

  • Acceptance of Offer plus Agreement on Closing Date (Mortgage and Survey)

At the time of negotiations for the sale of the property it is normal to agree a closing date whereby the purchaser agrees in principle to complete the purchase.  In certain cases a purchaser may require Mortgage Approval from a Bank/Building Society and a Structural Survey to be carried out on your home.  In these situations, should the purchaser fail to obtain Mortgage Approval or should the purchaser be dissatisfied with the Structural Survey Report on the property, the purchaser may decide to withdraw.  You will then need to go through the process of putting your property on the market again for sale with your auctioneer.

  • Contracts

As mentioned above, your solicitor will prepare contracts for the sale of your property.  These are quite lengthy documents and provide details of your property, and incorporate information regarding evidence of your ownership, maps, planning, etc. When furnishing contracts to the purchasers solicitor, your solicitor will also complete and furnish the Law Society “Objections and Requisitions on Title.”   “Objections and Requisitions on Title” run into well over 50 pages and your solicitor will usually need to discuss these with you before furnishing these to the purchaser’s solicitor.  Where the Objections and Requisitions have not dealt with all the purchaser’s queries, the Purchaser’s solicitor will raise specific pre-contract enquires, these queries deal with such matters as planning,  services available, the boundaries of the property etc.

Often, a purchaser will agree to purchase a property subject to a Structural Survey and obtaining Mortgage Approval as noted earlier.  As a rule of thumb the purchaser is not bound to purchase your property nor are you bound to sell until unconditional contracts in writing have been signed by both of you.  It is likely that when the purchaser receives contracts, they will be signed subject to obtaining Mortgage Approval on satisfactory terms and subject to a satisfactory Structural Survey being obtained.  This therefore gives the purchaser the option to withdraw from the purchase until it is confirmed in writing, by the purchaser’s solicitor, that the purchaser is satisfied with the Structural Survey and with the terms and conditions of any Mortgage Approval obtained.  Once contracts have been exchanged between your solicitor and the purchaser’s solicitor and all conditions have been satisfied and the contracts are no longer conditional then the contracts are binding on both parties.  The contract for sale will specify the closing date i.e. the date on which the transaction is to complete when your solicitor will hand over your keys to the property in exchange for a Bank Draft for the sale price.  As stated above, the purchaser will generally pay a booking deposit of approximately 2.5% to 5% to your auctioneer evidencing an intention to complete the purchase.  On signing of contracts the purchaser will be required to pay a balance 10% deposit of the sale price to your solicitor.  In general, these sums cannot be released to you, the seller, until the transaction has completed and the keys have been handed over.  In other words these sums are held by your representatives on behalf of the purchaser and not on your behalf.

  • Family Home

Where the property in sale is your family home and the property is registered in your name only, then, if your are married you will need the prior consent, in writing, of your non-owning spouse to the sale of the property.  In other words, the prior written consent of your non-owning spouse is required to the Contracts for Sale and the Transfer Deed, which actually transfers the property to the purchaser.  In addition, both of you, whether joint owners or not, will be required to swear a Statutory Declaration, with a copy of your State Marriage Certificate/Civil Partnership Certificate attached confirming your marriage and a number of other issues.  Your solicitor will review such issues with you prior to closing and you should arrange well in advance of closing to furnish your solicitor with your Original State Marriage Certificate/Civil Partnership Certificate which will be returned to you after completion of the transaction.  You can obtain this Certificate from the Registrar of Births, Deaths and Marriages in the location where you were married.

  • Closing documentation

On the date for closing and handing over of keys your solicitor will require you to attend at his/her offices to sign all the necessary closing documents, such as the Transfer of the property, statutory declarations and other documents.  Once you have signed these documents your solicitor will then complete with the purchaser’s solicitor.

  • Completion

On the appointed day, the purchaser’s solicitor may attend at your solicitor’s offices for the purpose of closing the transaction.  Once the transaction has been completed and the keys have been handed over your solicitor will arrange to redeem your mortgage on the property and you should within the following few days cancel your standing order for your mortgage repayment and for any relevant life cover unless you wish to continue with that cover.  In some cases your life cover/mortgage protection insurance may include an investment savings element which you may wish to continue and you should consult with the relevant insurance company/your financial advisor before cancelling such policy.  Once these formalities have been finalised the balance net proceeds of the sale price will be released directly to you.  Also, you will need to cancel your house insurance on the property which you have sold.  It is important not to cancel any of the above policies/standing orders until the transaction has been fully completed.

  •  Tax and Your Home

Local Property Tax “LPT” commenced in 2013 and is chargeable on residential properties in Ireland, with some exceptions.

This tax is payable in advance on the 1st November in the prior year, this is known as the liability date. The amount of the tax is based on the market value of the property at the last date of valuation, being the 1st May 2013 – the next valuation date is set as the 1st November 2019. It is a self assessed tax and is a matter for you to ensure that LPT is paid on the liability date for the following calendar year.  If LPT has been paid by you as the seller, we always aim to obtain a partial reimbursement from the buyers through their solicitors on completion of the sale. You can find out more about the LPT charge from www.revenue.ie.

Generally, if you are selling your family home (known as your Principal Private Residence) you should not be liable to Capital Gains Tax on its disposal, unless it was used as an investment commercial property.   However, where your family home is sold for an amount in excess of €1,000,000.00 your solicitor is required to obtain a Capital Gains Tax Clearance Certificate from the Revenue Commissioners which must be handed over to the purchaser’s solicitor.

  • Conclusion

While the above is not exhaustive, it describes in a general way the process involved in selling your property.  It often arises that you will be selling one house and proceeding to purchase another.  These transactions can be complex and in certain cases you will wish to move from one house to the other on the same day.  While this can be difficult, it is not impossible, to organise. By advising your solicitor early of your plans in this regard it may be possible to structure the contracts in such a way to facilitate such a course of action.

* This article covers in a general way some of the issues involved in selling property. You should always seek specific independent legal advice on the application of the law to your individual circumstances. 

How do I Bring a Claim for Personal Injuries*?

Suffering a personal injury can be a traumatic event and often can have a huge impact on your life. The effects can be far reaching and can include loss of earnings, substantial medical bills, a change in lifestyle and long term pain and suffering. The primary focus for anyone who has incurred such an injury should always be their recovery, whether physical or mental.   Conducting a personal injury case can be quite complicated and technical in nature and for this reason, people often choose to hire a Solicitor at the outset to the deal with legal matters, allowing them to focus on recovery and rehabilitation.

The term ‘Personal Injury’ generally includes a wide range of physical and mental injury caused by another’s negligence, such as soft tissue injuries, fractures, dislocated joints, PTSD, depression and nervous shock. Often, the extent of a person’s injury is not fully ascertained until proceedings commence and medical records obtained and examined, for this reason early settlement of a claim may not always be advisable.

  • Time Limits for Bringing a Claim

One of the most important considerations in an action for Personal Injuries is the Statute of Limitations.  Under the Civil Liability and Courts Act 2004, a Claimant has 2 years from the date of the incident in question (known as the accrual of the cause of action) or the date on which the Claimant first had knowledge of the cause of action (in simplistic terms, knowledge that there is a link between the injury suffered and the incident in question), to bring a claim, whichever is the later. If a claim is not brought within the requisite time period, the action is deemed to be statute barred.

  • Letter before Action

The initiating step in any claim is to issue a letter before action. The Civil Liability and Courts Act 2004 provides that a Claimant/Plaintiff must serve a notice in writing, before the expiration of 1 month from the date of the cause of action on the Respondent/Defendant setting out the nature of the wrong alleged. If this letter is not issued within the specified time period, the Court shall draw inferences from the failure to send the letter and where the interests of justice requires it, make no order for the payment of costs to the Claimant/Plaintiff or deduct such amount from the costs that would be payable to the Claimant/Plaintiff as the Court considers appropriate.

  • The Personal Injuries Assessment Board (PIAB)

Since the commencement of the Personal Injuries Assessment Board Act 2003, all claims for Personal Injuries (with the exception of medical negligence cases, claims under the Garda Compensation Scheme and most claims for psychological injury) must proceed through PIAB, also known as The Injuries Board. PIAB is a statutory body which was established with the aim of reducing the costs of litigation.  In order to submit a claim to PIAB, the Claimant must complete and submit the following;

  1. Form A – Application Form
  2. Form B – Medical Report of your Medical Practitioner dealing with your injuries, treatment and prognosis
  3. Application Fee
  4. Letter Before Action
  5. Receipts for any Expenses Incurred/Loss of Earnings

On receipt of the above documentation, PIAB issues a ‘Section 50 Acknowledgment’ which has the effect of stopping the statute of limitations from running for a certain period of time.   The Respondent is then notified that an application has been submitted and they have a period of 90 days to reply to PIAB as to whether they consent to PIAB assessing the claim. If the Respondent consents to assessment, the assessment proceeds. At this stage, PIAB may require the Claimant to undergo an independent medical assessment and the Respondent may also request the Claimant to attend their chosen medical practitioner for examination. PIAB will then make an assessment as to the value of the claim. In doing so, PIAB will have regard to the Book of QuantumThe Book of Quantum aims to provide an indication as to the potential range of compensation payable for a specific injury suffered. PIAB does not make a determination as to liability and merely assesses the value of the claim. Furthermore the Respondent consenting to assessment is not considered an admission of liability in any subsequent Court proceedings.

PIAB has 9 months (which may be extended to 15  months) to assess the value of the claim. If both the Claimant and Respondent accept the assessment, the case is settled. It should be noted here that the Claimant has a period of 28 days to accept the award and a failure to reply is deemed a rejection of the assessment. The Respondent has a period of 21 days to accept the assessment and any failure to reply is deemed an acceptance of the assessment. At this stage, an Order to Pay will issue from PIAB and can be enforced through the Courts if payment is not made on foot of the Order. If either party rejects the assessment, PIAB will issue an Authorisation. An Authorisation, as the name suggests, authorises the case to proceed to Court for determination on issues as to liability and assessment of damages.

If the Respondent does not consent to assessment, an Authorisation will issue at that stage.

  • Proceeding to Court  

The jurisdiction of the Court to hear a claim is dependent on the monetary value of the claim. The monetary jurisdiction of the various Courts are as follows;

District Court –  claims of up to €15,000.00

Circuit Court  –  claims of up to €60,000.00 in respect of personal injuries  (€75,000.00  in respect of all other claims)

High Court     –  claims in excess of €60,000.00 in respect of personal injuries  (€75,000.00  in respect of all other claims)

A large number of cases settle before proceeding to trial, either through PIAB, settlement negotiations or mediation. However, if the case does not settle, proceedings are issued by way of a Personal Injury Summons. This Summons must contain very specific information as to the facts of the case, the particulars of the injuries suffered and the particulars of negligence alleged. On receipt of the Summons, the Respondent/Defendant will then usually file an Appearance, serve a Notice for Particulars seeking further information and deliver a Defence. If the Respondent/Defendant does not dispute liability for the incident causing the injury but does dispute the level of damage caused, the case will proceed to trial as an assessment of damages only. If liability is disputed, the case will generally proceed to a full trial. In this instance, further expert reports including engineers reports and medical reports may be required to support the case.

  • Damages 

If a case is successful, the Court will generally award damages to the Plaintiff. Damages can be categorised under a number of headings including;

  1. General Damages – these are damages for pain and suffering, loss of amenity, quality of life and loss of expectation. General Damages can be awarded to include past as well as future pain and suffering and are compensatory in nature.
  2. Special Damages – these damages are to compensate for financial losses incurred as a result of the negligent action and can include medical expenses, loss of earnings, travel expenses, occupational therapy expenses etc. As with General Damages, these can be awarded to include past and future loss.
  3. Aggravated Damages – these damages are only awarded in exceptional cases where the Defendant’s conduct has exacerbated the Plaintiff’s injuries.
  4. Exemplary Damages – these damages are awarded to make an example of the Defendant and to deter future similar conduct . They are largely based on public policy grounds.

The level of damages awarded may also be impacted if the Plaintiff is deemed to have somehow contributed to the cause of the incident or the degree of injuries suffered. This is known as contributory negligence and awards can be reduced by the percentage of which the Court deems the Plaintiff negligent.

  • Legal Costs 

If a claim is settled as a result of the PIAB process, an award of costs is generally not made and any legal costs will  be discharged by the Claimant from their award.  Most Solicitors advise the Claimant of their PIAB legal fee on taking initial instructions and prior to submitting a claim to PIAB.

If the case proceeds to Court and it is successful, the reasonable costs of taking the case will be covered by the other side. There will be a certain level of expenses and costs which may not be covered, for instance where expert reports are obtained which are not relied on in Court, certain witness expenses and legal fees in relation to PIAB applications.

If the case settles prior or during Court proceedings, the Claimant’s solicitor will generally seek legal costs as part of the settlement.  Please see The Law Society of Ireland’s leaflet Information in Relation to Legal Charges here for further information.

This article covers, in a general way, some of the issues involved bringing a personal injury case.  In any particular case, you should seek specific independent advice, both legal and otherwise. *In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.

 

 

Should I Make a Will?

There are a number of reasons why you should consider making a Will;

  • you can determine who benefits from your estate (assets) on your death
  • if you die without making a Will (intestate) legal rules apply on who benefits from your estate – for example:
  1. if you are married/in a civil partnership without any children then your surviving spouse/civil partner is entitled to everything;
  2. if you are married/in a civil partnership and have children then your surviving spouse/civil partner is entitled to two thirds and the children are entitled to one third;
  3. if you are a bachelor or spinster (i.e. single) your parents become entitled – if your parents die before you then your assets are shared between your brothers, sisters and children of pre-deceased brothers and sisters take their parent’s share;
  4. further rules apply depending on the circumstances
  • it regularises your affairs and eases the burden on your survivors/executors when winding up your estate and also reduces the prospects for conflict between your survivors
  • it will avoid unnecessary costs

If Single

  • on marriage/civil partnership, an existing Will is automatically revoked by law on the date of your marriage/registration of your civil partnership unless it was made ‘in contemplation’ of that marriage/civil partnership.

If Married/Civil Partner

  • any Will made by you when single, will have been automatically revoked by law on the date of your marriage or registration of your civil partnership unless it was made ‘in contemplation’ of that marriage/civil partnership
  • it is common for married couples/civil partners to make ‘mutual Wills’ (virtually identical Wills)

If a Cohabitant 

  • unlike marriage/civil partnership, if you are a cohabitant, you may only inherit from your partner if you have been left a gift/bequest in your partner’s Will or if you own property together as joint tenants. Accordingly, it is recommended that if you are cohabiting with your partner and you wish to benefit them on your death, you make a Will.
  • The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 commenced on 1st January 2011 and introduced a redress scheme whereby a ‘qualifying cohabitant’ on the death of the other cohabitant can bring an application in Court, seeking that provision be made for them from the estate of the deceased.
  • The requirement for such an application may be avoided if both partners make valid Wills benefiting each other or enter into a Cohabitation Agreement. (Please do not hesitate to contact us for further information regarding the rights of cohabitants.)

Beneficiaries/Children

  • within legal rules, you can benefit any individual, association, corporation, charity etc.
  • where a beneficiary witnesses a Will, he or she will be disinherited
  • where a Will is made a surviving spouse has the option to take his/her ‘legal right share’ (1/2 the estate if no children – 1/3 of the estate if there are children), or to take the provision (if any) made for them under the Will
  • the law does not specifically require provision to be made for children under a parent’s Will, though, where children have not been ‘properly’ provided for, they have a legal right to apply to court seeking adequate provision for their needs where the Courts consider that no proper provision has or had been made for such children
  • there is no distinction in law between marital and non-marital children – they have the same rights and entitlements
  • there are other considerations to be borne in mind where spouses are separated, legally or judicially or divorced

Executors

  • it is recommended that you select two executors to administer your instructions/estate as set out in your Will after your death
  • the executors can be professionals or trusted family members or friends
  • a beneficiary can also act as an executor without being disinherited
  • there is no legal obligation on your executors to act as such on your death

Should I Make a Will Trust?/Trustees and Guardians

  • anyone with minor children should consider the making of a Will Trust (fixed or discretionary depending on the circumstances) whereby your estate on your death will be managed by your nominated trustees for the benefit of your minor children until they reach a specific age (fixed by you) when your assets can then be distributed to your children
  • you can nominate your executors to act both as trustees and guardians or alternatively you can nominate different individuals to act in the different capacities, which is recommended.
  • there is no legal obligation on your trustees or guardians to act as such on your death
  • trusts are generally subject to normal taxes e.g. income tax, capital gains tax etc. In some circumstances, additional trust taxes can apply..

If you are considering making your Will please contact our office on +353-21-4374666 or fill in an enquiry form to obtain a quote and discuss in more detail. 

This article covers, in a general way, some of the factors to be taken into account when deciding to make a Will.  In any particular case, you should seek specific independent advice, both legal and otherwise. 

What is Probate?

Probate is the legal process of acknowledging the right of a person or persons to administer the Estate (the assets) of another person after they pass away.

In order to administer the estate of a Deceased, a Grant of Representation is usually required. In some instances a Grant may not be required, for example,

  • if property was held jointly as Joint Tenants with another person;
  • where accounts under a certain value have been nominated to another person;
  • where the entire gross Estate of the Deceased does not exceed a certain amount (e.g. some banks do not require a Grant to release funds where the entire gross Estate is less than €25,000.00)

There are various types of Grants of Representation under Irish Law.

A Grant of Probate:

Where the Deceased died leaving a Will, the Executors appointed in the Will  prove the Will by extracting a Grant of Probate from the Probate Office or the District Probate Registry. Proving the Will essentially means that the Probate Office or the District Probate Registry as the case may be, is satisfied that the Will is valid and that the Estate may be administered in accordance with the terms of the Will.

A Grant of Letters of Administration Intestate:

Where the Deceased died without leaving a valid Will, they are deemed to have died intestate and the estate of the Deceased is administered in accordance with predetermined rules of distribution as set out in the Succession Act 1965. In order to distribute the estate, an Administrator must take out Letters of Administration Intestate from the Probate Office or the District Probate Registry. The priority and entitlement of a person to become an Administrator is set out in the Succession Act 1965 and the next-of-kin of the Deceased usually takes priority.

A Grant of Letters of Administration with Will Annexed

Where the Deceased died leaving a valid Will but the Executor is unwilling or unable to act,has died or the Will fails to appoint an Executor in the first instance, a Grant of Administration will issue to the applicant, who is usually the Residual Legatee (the person entitled to the residue or the remaining assets in the Estate after all the specific gifts have been settled and the debts and funeral expenses discharged).

Taking Out the Grant of Representation

It is open to a proposed Personal Representative to extract the Grant personally or to appoint a Solicitor to apply for the Grant and administer the Estate. In certain circumstances, it will not be possible for the Personal Representative to act without a solicitor. Form PA1 is an informative leaflet for those considering a personal application and can be accessed here.

One of the first steps in administering an Estate is to obtain a Death Certificate for the Deceased, as a copy of this document will be required throughout the process. If the Deceased left a Will, all the beneficiaries should be informed of the death of the Deceased and certain information should be obtained such as PPS numbers, prior gifts/inheritances received (for tax purposes) and their residency status.

At this stage, it is necessary to ascertain the extent of the assets and liabilities of the Deceased at the date of death. This is usually achieved by writing to the various institutions with which the Deceased held accounts, obtaining valuations for any real property (land & buildings) held by the Deceased at the date of death, confirming the costs of funeral expenses, writing to the Department of Social Protection, the HSE and the Revenue Commissioners to notify them of the death of the Deceased and confirming there are no claims against the Estate.

Once all the assets and liabilities are confirmed, a Revenue form CA24 will need to be completed. This form is completed in duplicate and submitted to the Probate Office or the District Probate Registry with a number of other documents and Affidavits, including the original Will if applicable. Once the Probate Office or the District Probate Registry is satisfied with the documentation submitted, a Grant of Representation will issue. This document authorises the Personal Representative to administer the assets in accordance with the terms of the Will or the rules of Intestacy as the case may be. In administering the Estate, it will be necessary for the Personal Representative to discharge the liabilities of the Estate, including funeral and legal expenses and any other liabilities outstanding. The Personal Representative must also ensure that taxation matters are dealt with correctly and finalised.

Once all the liabilities have been discharged, the Personal Representative can administer the Estate remaining to the Beneficiaries.

It should be noted that the obligations and duties on a Personal Representative are quite onerous and it is imperative that legal advice is sought where the Personal Representative is unsure of their responsibilities in administering an Estate.

* This article covers, in a general way, some of the issues involved in administering an Estate.  You should seek specific independent advice, both legal and financial in relation to your particular circumstances.

Should I Obtain Legal Advice on my Business Start Up?

Company Formation

At Flynn Solicitors we can help you navigate through extensive regulation with regard to company law. The 2014 Companies Act which regulates Irish Business activities is the single largest piece of legislation on the Irish Statute Books and as you look at compliance of your business with the law it can be helpful to have assistance with its interpretation and application.

From the outset of your business, we can assist you with deciding upon the legal form that your company will take whether sole trader, partnership, private limited company etc. We can guide you through the process of registering your business with the Companies Registration Office and the drafting of foundation documents through to drafting contracts of employment, guiding you on company director obligations and informing you of your company’s specific requirements in terms of filing returns and compliance with regulatory requirements. We are experienced in reviewing and advising upon commercial contracts and we bring commercial awareness to bear on all legal advice that pertains to business needs.

Director Duties

In circumstances where a failure to observe director requirements can lead in exceptional circumstances to personal liability of directors for company debts, we can clearly set out and advise upon specific duties and requirements that will need to be undertaken by you in the management of your company.

Contracts of Employment

We can work with you to draft bespoke contracts of employment incorporating your business’s specific requirements with a thorough knowledge of employment law. We have experience in drafting contracts of employment for businesses in a range of sectors and we can facilitate you with industry specific, tailored terms of engagement.

Commercial Lease

Upon finding an appropriate premises for your business we can assist you in reviewing and negotiating your commercial lease, negotiating your initial rental deposit and reviewing and advising you on any side letters pertaining to your lease.

Raising Finance

Securing and sourcing capital is an integral part of ensuring the success of your start up and we can work with you and your chosen financial institution to procure loan approval and review with you different financing options.

 

Contact Us

The Old Mill,
Off Main Street,
Carrigaline,
Co.Cork,
Ireland,
P43 K194

Tel: 021 4374666
Fax: 021 4374667

Email: info@flynnsolicitors.ie

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