Procedure for Extracting a Grant of Representation in Ireland – Cross Border Estates

Foreign Domicile

Domicile should not be confused with tax residency or nationality.  The country of Domicile is essentially the country where you live with the intention of remaining there permanently.  You are born with a domicile of origin, which is usually based on the domicile of your father, unless your parents are unmarried.  You can, however, give up your domicile of origin and replace it with domicile of choice.

Where a person dies domiciled outside the Republic of Ireland leaving assets in the Republic of Ireland, the general rule of thumb is that where the estate includes immovable property, such as a house or land, shares in an Irish registered company, or any other Irish assets over the value of €25,000, such as a bank account, then the Republic of Ireland estate will need to be administered in this jurisdiction.  Where a deceased person held assets in two or more jurisdictions, their estate is considered a “cross-border estate”.  A lawyer will usually be engaged initially by the deceased’s executor or next of kin in the jurisdiction of domicile, however, the ‘foreign’ lawyer, the executor or next of kin will usually then need to seek assistance from and instruct a Republic of Ireland solicitor to process an application for Grant of Representation in this jurisdiction if the non-domiciled deceased left relevant assets in the Republic of Ireland.

Grant of Representation

A Grant of Representation may need to be taken out or extracted in order to administer the Republic of Ireland estate of the deceased.  This is an official legal document, granted under seal of the High Court and issued by a government agency known as the Probate Office in Ireland, to the Legal Personal Representatives of the deceased person and this gives them authority to deal with the Republic of Ireland assets of the deceased.

The three most common types of Grants of representation are as follows:

  • Grant of Probate – This Grant applies where the deceased is deemed to have died testate i.e. with a valid Will, and where the executor or executors continue to act and have not otherwise renounced. The Grant of Probate issues to the executor(s) appointed under the Will and allows them to then deal with, collect in and administer the assets of the deceased, in accordance with the terms of the Will of the deceased.
  • Grant of Letters of Administration Intestate – This Grant applies where a person is said to have died intestate i.e. without a valid Will. This Grant issues to the person(s) who were the nearest next of kin at the date of death, determined in accordance with the Succession Act 1965.  The applicant is called an administrator.
  • Grant of Letters of Administration with Will AnnexedThis Grant applies where a person dies leaving a valid Will, however, for whatever reason the executor appointed under the Will is unable or unwilling to act and a person other than the executor applies for the grant. The grant will issue to the person entitled by law in accordance with the Succession Act 1965.

Preliminary Steps Involved in the Application Process

The application process for extracting Grant of Representation in the Republic of Ireland, where the deceased was non domiciled and left a cross border estate can be difficult to navigate.  It is necessary for the Republic of Ireland solicitor to gather as much relevant information as possible in order to complete the application papers, and the following details are required as a minimum:

  • Details of the deceased to include name, address and original death certificate;
  • Original Will and Codicil (if applicable and if available), otherwise, copy of any foreign grant extracted, duly sealed and certified by the foreign Court;
  • Details of the beneficiaries to include name, address, and where relevant, details of prior benefits (gifts / inheritances), which may be necessary from a tax perspective;
  • Full details of all assets and liabilities in the estate (Irish and foreign assets) dated as at the date of death;
  • If no grant has been extracted an affidavit of law may be required from the foreign solicitor verifying the situation and confirming entitlement of executor or next of kin to extract grant under the law of country of domicile and confirming that no foreign grant has been extracted.

It might also be necessary for the Republic of Ireland solicitor to apply for a Personal Public Service (PPS) number for the deceased and / or for certain non-resident beneficiaries, unless one was previously assigned.  It should be noted that the turnaround time for the issue of PPS numbers is approximately 4 weeks and the application for Grant of Representation cannot be processed without PPS numbers for the deceased and any relevant beneficiaries.

The Next Steps Involved in the Application Process

The application for a Grant of Representation will include preparing and drafting various documents, such as:

  • An Inland Revenue Affidavit: This is a return to the taxing authority in Ireland, the Revenue Commissioners, which schedules date of death assets and liabilities of the estate of the deceased, both domestic and foreign.  It also includes certain information about relevant beneficiaries;
  • An Oath of the Executor / Administrator: This essentially summarises details included in the Inland Revenue Affidavit.  The executor / administrator provides an oath that he / she will administer the estate in accordance with the terms of the Will and / or in accordance with succession legislation; and
  • An Administration Bond: An administration bond is required where the deceased died intestate or where the deceased died testate, however, the application for grant is being made by someone other than the executor appointed under the Will. The bond is given by the administrator to the President of the High Court.  It provides for a penalty of up to double the gross market value of the Republic of Ireland estate, in the event that the administrator fails to administer the estate in accordance with the terms of the Will and / or succession legislation.

On execution of the application papers, these are lodged with the High Court Probate Office, together with either a sealed and certified true copy ‘foreign’ Grant of Representation enclosing a sealed and certified true copy Will or the original Will, if no ‘foreign’ grant has been extracted and where relevant, an affidavit of law.  The Irish Probate Office will then process the application for the Republic of Ireland Grant.

Timeframe for Extraction of a Grant of Representation

Extracting a Grant of Probate or Grant of Administration can be a lengthy process, between gathering information, applying for PPS numbers, if necessary, and delays in processing applications within the Irish Probate Office.  It can take approximately 12 weeks from date of lodgment of papers for the Grant to issue.  This turnaround time also depends on whether the Probate Office require further information or documentation to progress, which can often be the case with cross border estates.

What is the Next Step?

Once a Grant of Probate / Grant of Administration issues, the Republic of Ireland solicitor can then proceed to collect or call in and transfer the Republic of Ireland assets of the estate and ensure that all Republic of Ireland liabilities and taxes are discharged.

How we can help

If you have any queries or concerns, or would like to discuss the above in further detail, please feel free to contact Trea McGuinness in the Private Client Department of BHSM on 01 440 8300 / tmcguinness@bhsm.ie.

This article is for general information purposes.  Legal advice must be obtained for individual circumstances.  Whilst every effort has been made to ensure the accuracy of this article, no liability is accepted by the author for any inaccuracies.

 

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