Selling a Probate Property?

What is a Grant of Probate?

The executor will be issued a Grant of Probate by the Probate Office or if no Will was left by the deceased, a Grant of Administration. This Grant is the Probate Court's decision that the deceased’s Will is valid, thus giving the executor the authority to administer the estate. Applications are made to the Probate Office or the District Probate Registry for both a Grant of Probate and a Grant of Administration.

Is a Grant of Probate Always Required?

A Grant of Probate is not required under the following circumstances.

• If there is only a cash asset, such as a bank account with less than €25,000 in the sole name of the deceased, this can be handled under the small estates procedure, which will allow access to any cash asset under this amount of €25,000 thus negating the need to apply for a Grant of Probate.

• A Grant of Probate is not required where all assets and property are held in joint names.

However, a Grant of Probate will always be required if there are shares in land or property in Ireland. Generally speaking, and subject to legal advice on the particular situation, unless there is a surviving joint owner, an application must be made for a Grant of Probate or a Grant of Administration and this must be granted before a sale of a property can complete.

How Long Does it Take?

The personal representatives of a deceased person shall distribute his estate as soon after his death as is reasonably practicable, having regard to the nature of the estate, the manner in which it is required to be distributed and all other relevant circumstances, but proceedings against the personal representatives in respect of their failure to distribute shall not, without leave of the court, be brought before the expiration of one year from the date of the death of the deceased. Time allowed for distribution [1695 (c. 6) s. 4] Succession Act 1965

The length of time it takes to get the Grant of Probate can differ depending on how complicated or great the deceased’s estate is and the current backlog in the Probate Office. Consideration must be given to the fact that the whole process can take anything from four to six months from the date that the required documentation is received, but it can, depending on the individual case, take considerably longer. In general, most Probates are completed within a six month time frame from your solicitor receiving all the required information.

How Much Does it Cost?

Each law firm has their own pricing structure. It is therefore important to source a professional solicitor who will not only offer the best advice, but can also offer a competitive fee with no hidden costs and be able to guide you through the whole process in a clear manner and without delay. It is best to check the fee scale to ascertain the relevant fee before submitting the application to the Probate Office. Be sure to request a layout of the fee structure estimating the likely costs as per the requirement in Section 50 of the Legal Services Regulation Act 2015.

150. (1) A legal practitioner shall, whenever required to do so under this section, provide to his or her client a notice (in this section referred to as a “notice”) written in clear language that is likely to be easily understood by the client and that otherwise complies with this section. (2) On receiving instructions from a client, a legal practitioner shall provide a client with a notice which shall - (a) disclose the legal costs that will be incurred in relation to the matter concerned.

The fees for probate are laid out in the Supreme Court and High Court (fees) Order at Schedule 1 Part 8 in Items 7 and 8 and access to these is via the www.courts.ie website. If a personal application is being made, the costs involved also depend on the sum of the value of the estate and the fees that are payable in this regard are also found on the courts.ie website.

What Value is Used to Calculate the Value of Property in a Will?

When making an application for Grant of Probate / Administration, a value needs to be assigned to any property within that application. The value used is provided by a qualified estate agent / valuer as to what the property was worth on the day the deceased person died. So let’s suppose an estate agent values a property at €500,000 at the time of death and this property is willed to three siblings.

For tax purposes, each has inherited one third of the property at a value of €166,667 each. As this is considerably below the €335,000 threshold, none of the three has any Capital Acquisitions Tax (CAT) to pay, assuming this was the totality of the estate. However, let’s suppose the market rises (or the agent undervalued the property at time of death) considerably between the time of death and when the property ultimately sells and as such the final price achieved is €600,000. The Revenue interprets this set of circumstances that the property has increased by €100,000 between the time of death and the date the property sold and that gain is subject to capital gains tax, currently at 33%. So in the above scenario, each sibling will incur a tax liability of their share of the €100,000 gain at 33%:

Now let’s suppose that in the above example, instead of valuing at €500,000 at the time of death, the agent valued the property at €600,000. Each has effectively inherited €200,000 so as above no inheritance tax is due as each sibling is comfortably within their threshold. The property then ultimately sells for €600,000 which is the same value as what they inherited at and as such no gain has accrued and no CGT tax is due.

This emphasises the importance of not undervaluing a property for probate purposes so as to make the fullest use of your tax free threshold.