What is Probate?

The process of winding up the estate of a deceased person in a nutshell

A person who dies having made a will is said to die ‘testate’. The Will names the  person chosen by the deceased to manage his affairs and distribute his wordly goods after his death. These goods will be handed over to his beneficiaries named in the will. This person is called the ‘executor’ or ‘executrix’.

A person who dies without having made a will is said to have died ‘intestate’. The next of kin of the deceased (usually a wife or child, parent or sibling) may apply for permission to manage the affairs and distribute the assets amongst those persons legally entitled to inherit. This person will be called the ‘administrator’ or ‘administratrix’.

Probate comes from the word ‘probare’ which means to prove. When a person dies his or her Executor (where there is a Will) or Administrator (where there is no will) must apply to the Probate Office to prove the Will and in doing so satisfies the High Court that he or she is the person legally entitled to administer the estate of the deceased.

Administering the estate involves gathering in the assets, usually money in bank accounts or post office shares, proceeds of insurance policy, post office savings certs and perhaps a house.  It involves paying off the debts and funeral expenses and inheritance tax, and distributing the rest of the estate amongst the beneficiaries named in the will or, if there is no will then the ‘next of kin’ who are legally entitled to a share of the estate.

Most people will not have any experience in this area and will find the prospect of doing the job themselves daunting. If the estate is relatively simple and you follow a few basic rules then, while the job will still be time consuming and involves a lot of paperwork, you will be successful in undertaking the task yourself. However if the estate is in a mess for example the estate consists of many different types of assets with badly organised paperwork, or there are substantial tax liabilities , problems with the Will, squabbling family members , then you may run into difficulties. The job will take a lot longer and you will probably get no thanks from the relatives for your efforts in trying to sort out the problems.

Taking on the role of Executor or Administrator involves first and foremost acting in a fiduciary capacity. This means honouring the wishes of the deceased, acting honestly, in good faith according to the law of the land and in the best interests of the beneficiaries. If you follow these principles, you are unlikely to fail.

Communicating with the beneficiaries of the will or the family members is vitally important. Most will probably wish to know how much they are getting and when will they get it! As the process of winding up an estate can involve long delays, especially if you are undertaking the task yourself, you will need to keep everyone up to date on progress as you proceed. They will ask a lot of questions. Why should they have to wait so long? Who pays the funeral bill? Why should Johnny be allowed to continue to live in the house? Who gets the car? Can I have that ring she always wanted me to get? Mary has taken stuff from the house, what are you doing about that? Can I get an advance now?

What does the Executor or Administrator do in a nutshell?

• Ensure the funeral arrangements are put in place.
• Locate, read and understand the will;
• Identify the beneficiaries;
• Make an inventory of all assets;
• Decide if probate is necessary and commence the procedure;
• Notify the Banks, credit Card company, utility company, insurance company and all relevant persons;
• Notify the beneficiaries of the will or the next of kin if there is no will;
• Secure and protect the assets while they are under your control;
• Obtain the Grant of Probate or Administration from the Probate Office;
• Collect all funds belonging to the deceased or owed to the estate;
• Pay off all debts funeral testamentary expenses;
• Sell any assets such as property or shares if necessary;
• File tax returns;
• Consult with the beneficiaries for their views on any issues that may arise that affect them;
• Prepare the final Executor’s Accounts;
• Distribute the estate.

At O’Shea Legal we have over thirty years experience helping clients through this difficult process. With a Diploma in Trusts and Estate Management our firm principal has the experience and qualifications to handle any complications and we are focused on getting the job done quickly in order to remove as much stress and anxiety.

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