Legal Advice

After a death, there can be many legal details to work out. While it is not necessary to engage a solicitor, it is strongly recommended. A solicitor will make sure that all the necessary legal formalities are correctly completed. The time following a death of a loved one is extremely emotional and even the closest family may have disagreements over the most trivial matters. It can therefore be beneficial to have an experienced solicitor take on the additional burden involved in extracting Probate or Administration.

Whether an Account is held in the sole name of the Deceased or joint names with another surviving owner will determine what needs to be done. Any Account in joint names will usually pass to the joint account holder(s) under the rules of survivorship, although depending on the relationship of the parties there may be a resulting trust in favour of the Estate. Where an Account is held in the sole name of the Deceased it is usual for the Bank to freeze the Account once notified of the death. Banks will, however, generally facilitate payment of funeral expenses by the Executors or next-of-kin on production of relevant documentation. The balance in the Account will be released by the Bank once Grant of Probate or Administration has been extracted. In certain cases, there may be no requirement to extract Grant of Probate or Administration.

In the event that there is a valid nomination on a Credit Union Account then the account proceeds will be paid to the Nominee(s) without the necessity of Probate or Administration.

An Interim Death Certificate is completed by the Medical Practitioner certifying the death. This can then be registered with the Registrar of Births, Marriages & Deaths. The death is usually registered by the next-of-kin and should be completed within three months of death. The Registrar will thereafter issue the official State Death Certificate, the original of which will be required when dealing with the legal formalities.

Everyone knows they should have a Will but a significant majority do not have one. Writing a Will is easy and inexpensive and once it is done you can rest easy knowing your assets will be distributed according to your wishes. If you have children under 18 then you can also decide who will be appointed as Legal Guardian to take care of them in the event of your death. The formalities for a valid Will are:

1. The Will must be in writing.
2. The Testator must be over 18 years.
3. He/she must be of sound disposing mind.
4. He/she must sign his/her name, make his/her mark or acknowledge his/her signature in the presence of two witnesses, both present together.
5. His/her signature or mark must be at the end of the Will.
6. The two witnesses must sign their names in his/her presence.

Although you do not need a Solicitor to complete a Will, it is recommended that you use the services of a Solicitor to avoid any legal difficulties after your death. The Solicitor will store your original Will in safekeeping free of charge and the Will may be amended by you at any time. It is also recommended that your Executor is advised of the location of your Will.

Probate is the legal process of proving a Will in the High Court to facilitate distribution of all assets in accordance with the Will. Administration is the legal process involved where there is no Will and an Intestacy arises. It is always necessary to extract a Grant of Probate or Administration where there is real property. However, where there is only personal property then a Grant of Probate/Administration will only be required where there are of certain value. It is not necessary for the Executor or Administrator to attend before the Court and all documentation is prepared and filed through the Probate Office. Although it is not essential to engage a solicitor to extract Grant of Probate/ Administration, the vast majority of people do so as the procedure can be extremely complex and onerous.

An Executor is the Personal Representative of your Estate nominated by you in your Will. A minimum of one Executor must be named and he/she must be over 18 years of age and not suffering from a legal disability. The Executor is the person in charge of taking control of your assets, paying off debts and distributing assets to those entitled under your Will. An Executor is not obliged to act and has the right to refuse and it is therefore recommended that more than one Executor is appointed.