Estate handling, Irish style

As the Irish continue their march across the globe, I am seeing all types of private international succession law issues arising more frequently in this jurisdiction.

The object of this article is to highlight the procedures for extracting an Irish grant of representation in circumstances where the deceased died possessed of property within Ireland.

Foreign domicile

When a person dies domiciled outside of the Republic of Ireland, but leaving property here, the grant will be given according to the law of the country of the deceased’s domicile at death where the property is movable, but according to Irish law (lex situs) where the property is immovable.

Section 102(1) of the Succession Act 1965 provides that a testamentary disposition shall be valid as regards form, if it complies with the internal law:

(a) of the place where the testator made it, or

(b) of a nationality possessed by the testator, either at the time when he made the disposition, or at the time of his death, or

(c) of a place in which the testator had his domicile either at the time when he made the disposition, or at the time of his death, or

(d) of the place in which the testator had his habitual residence either at the time when he made the disposition, or at the time of his death, or

(e) so far as immovables are concerned, of the place where they are situated.

Estate including movable estate

Where there is both movable and immovable estate, or movable estate only, in the Irish jurisdiction, the applicant for a grant of representation must show entitlement under Irish law by showing title in the oath, and must show entitlement under the law of domicile by lodging:

(i) a sealed and certified copy of the grant (and will, if applicable) from the appropriate court in the country of domicile; or

(ii) where no such grant has issued, an affidavit of law from a lawyer practising, or who has practised, in that jurisdiction.

If the applicant also has entitlement under Irish law, such title should be shown in the oath and a full grant in respect of both movable and immovable estate can issue.

If, however, the applicant does not have entitlement under Irish law, a grant limited to the movable estate only can issue under Order 79, rule 5(8)(a) of the Rules of the Superior Courts.

Immovable estate only

Where the only estate in the Irish jurisdiction is immovable estate, the applicant must show entitlement under Irish law by showing title in the oath.

If the applicant can also show entitlement under the law of domicile, i.e. a sealed and certified copy grant (and will, if applicable) or an affidavit of law, a full grant in respect of immovable estate can issue.

If, however, the applicant does not show entitlement under the law of domicile, a grant limited to the immovable estate can issue pursuant to Order 79, rule 5(8)(b) of the Rules of the Superior Courts.

Foreign domicile and executor is applying

Where the deceased died domiciled outside of Ireland, and a grant has been extracted by the executor in the jurisdiction of domicile, and the executor intends applying for a grant in the Irish jurisdiction, the normal set of executor papers should be lodged (see below). The only difference is that a sealed and certified copy of the will and grant (from the court of foreign domicile) is exhibited in the oath (i.e. in place of the original will). A full grant can issue in these cases.

Will in a foreign language

Where there is a foreign language will, it is necessary to obtain a probate officer’s order before lodging the application for a grant of representation.

Requirements for an affidavit of law

The affidavit should be sworn by an independent lawyer practising, or who has practised, in the relevant jurisdiction. His/her qualification to make the affidavit should be stated. The following matters should be dealt with:

1. The facts of the particular case should be set out and all relevant documents exhibited.
2. The legislation of the relevant jurisdiction governing entitlement to administer the deceased’s estate should be referred to and quoted.
3. It should be stated whether a grant has issued in the country of domicile.
4. When the affidavit is required to deal with the validity of a foreign will, the legislation of the relevant jurisdiction governing the requirements for the valid execution of a will should be referred to and quoted.
5. When the affidavit is required to show entitlement to extract a grant, it should state who is or are the person or persons entitled to administer the deceased’s estate under the law of the country of domicile.
6. If more than one person is entitled to administer the estate, it should be stated whether they are entitled to administer independently of each other, or whether all must administer together.

Types of grant of representation

A grant of representation is a document granted under seal by the High Court which gives authority to a named person (or persons) to deal with a deceased’s person’s estate.

The three most common types of grants of representation are:

Grant of probate

When a person dies leaving a valid will and appointing an executor, a grant of probate issues to the executor. The person’s assets are dealt with by the executor, according to the terms of the will. The deceased is said to have died testate. If any of the following applicable documentation is missing from the application, the Probate Office may refuse to issue the grant:

• original will and codicil (if applicable) and engrossment
• death certificate
• oath of executor (and copy)
• renunciation of executor (if applicable)
• Inland Revenue affidavit
• schedule of lands
• affidavit of attesting witness (in the absence of an attestation clause)
• affidavit of plight and condition (if the will is torn or mutilated)
• affidavit of testamentary capacity (if required)
• charitable bequest form (if required)

Grant of letters of administration intestate

When a person dies without having made a valid will, a grant of letters of administration issues to the person or persons who were the nearest next of kin at the date of death. Next of kin is determined by the Succession Act 1965. The following proofs are required:

• death certificate
• oath of administrator (and copy)
• Inland Revenue affidavit
• schedule of lands
• evidence of current market value
• bond
• justification of surety

Grant of letters of administration with will annexed

When a person dies leaving a valid will and a person other than the executor applies, a grant of letters of administration with will annexed issues to the person entitled by law. When the grant issues to the applicant, he or she is called the legal personal representative. The application must include:

• original will and codicil (if applicable) and engrossment
• death certificate
• oath of administrator (and copy)
• renunciation of executor (if applicable)
• Inland Revenue affidavit
• schedule of lands
• affidavit of attesting witness (in the absence of an attestation clause)
• affidavit of plight and condition (if the will is torn or mutilated)
• affidavit of testamentary capacity (if required)
• charitable bequest form (if required)
• power of attorney (if applicable)
• evidence of current market value of property
• bond

For every type of grant, it is important to note that a Personal Public Service (PPS) number is required for a deceased person or for a beneficiary resident overseas. Lack of a PPS number will result in the affidavit being returned to the executor/solicitor, thereby causing a delay in the processing of the application for the grant of representation. The Department of Social Protection (Client Identity Services), who have the responsibility of issuing PPS numbers, will need to be contacted prior to any application being made for a grant of administration.