Probate

Grant of Representation

When a deceased dies leaving assets, the assets pass to his personal representative.  In order to carry into effect the deceased\’s wishes (or in the case of administrators, the division of assets required by law), they must obtain a grant of representation.

This is a grant of probate in the case of a will and letters of administration where there is no will. The personal representative collects and distributes the assets in accordance with law.

It is a basic principle that assets within the jurisdiction generally require a grant of representation from that jurisdiction.  Even if a person dies with a relatively small amount of assets in that jurisdiction, a grant of representation in that jurisdiction would be required in order to transfer those assets.

In civil law jurisdictions, assets pass directly to the heirs without the requirement for a grant.  However, Irish law will not recognise the transfer of Irish assets without a domestic grant.

Irish Grant of Probate

The succession to immovable property is determined by the deceased’s domicile.  If the deceased left immovable assets within the jurisdiction, a grant of probate may be required even though the deceased is neither domiciled nor resident.

Many jurisdictions will not make a grant in their jurisdiction unless a grant has been made in a jurisdiction with which he has a closer connection.  The High Court has jurisdiction to make this grant.

A grant of representation may be made in respect of a deceased person, notwithstanding that he left no assets in the State.  This allows an Irish grant that facilitates the issue of grants in other jurisdictions.

A deceased may make separate wills dealing with his Irish assets and foreign assets.  Difficulties may arise where they are not compatible.  A grant may be made in respect of the Irish will only.  However, if it is more appropriate, a grant may be made in respect of either or both wills if they are not independent.  It appears that if there is some practical benefit to be derived from making a grant in respect of a foreign will, the Irish courts will make it.

Irish Letters of Administration

The High Court has the power to grant administration with or without will annexed of the assets of a deceased person.  The grant may be limited as the court sees fit.  Where there are special circumstances, it may make the grant of administration to such a person as it sees fit.

The Irish courts will generally appoint as administrator a person entitled under the law of the domicile of the deceased.  Where, however, that person takes no steps to obtain probate or letters of administration, the court may grant it to another person, including a creditor.  A grant may be made ancillary to the principal administration in the country of the person\’s domicile.

Administration of Assets

An Irish personal representative must gather the assets of the deceased that are situated in the State.  His obligations in respect of foreign assets are less well defined, but generally, he will require a foreign grant of representation to gather those assets. He may be subject to penalties and risks under foreign law.

The administration of a deceased’s estate is governed by the law of the country in which the grant is obtained.  It is effectively a procedural matter.  In common with the general principle, the law of the forum determines the position. Therefore,this law applies as regards payment,  entitlement of debtors and orders of payment including priority.  Foreign creditors and Irish creditors rank equally.

The only difference between a principal and ancillary administration is that the Irish ancillary administration need not advertise for foreign debts or take steps to ascertain that position as far as Irish law is concerned.

The distribution of assets after payment of debts is a matter of succession rather than administration (procedure).  It is, therefore, determined by the deceased\’s domicile as far as movables are concerned.  Where an ancillary personal representative has collected in assets and paid debts within the jurisdiction, he will generally give the residue to the foreign administrator or persons entitled under foreign law.  A court may, however, prevent the ancillary administrator from handing over the balance.

An administrator appointed by a foreign court may not act in Ireland without an Irish grant.  If he deals with assets within the jurisdiction, he may be deemed an executor de son tort and be obliged to account for assets received.  Where a foreign administrator brings movable assets of the deceased into Ireland without having accounted for them in the administration in the state from which its grant derives, a creditor or beneficiary may take an action in Ireland for their administration in accordance with law.

Administration Issues

Where there are separate wills, one disposing of Irish assets and one of foreign assets, it may be that Irish law only applies to the Irish will.  It may be possible to admit the foreign will to probate, provided there are good reasons for doing so.  In theory, domestic grant extends to property worldwide.  This is of limited practical effect because the right to administer the property in the foreign country must depend on local law.  However, he shall remain accountable as a representative in Ireland.

The title of administrator and personal representatives applies to assets situated in the jurisdiction at the date of death.  It also applies to property that comes into it afterwards.  Where, however, the assets have been appropriated by an administrator acting under foreign law prior to that, this rule does not apply.

Where an ancillary representative has been authorised to deal with movable Irish assets of a person dying domiciled abroad, the administration is governed by Irish law although beneficial distribution is governed by the law of the domicile.

Debts

The representative must pay debts, whether domestic or foreign, according to Irish domestic law.

Where a foreign creditor seeks payment in the jurisdiction, he must take domestic law as he finds it.  He may not claim personal advantages or advantages that foreign law allows if this is inconsistent with his obligations under domestic law.

This may arise, for example, if the debts are statute barred under foreign law but not domestic law.  The principal administrator is not entitled to demand surplus assets to be handed over to pay a debt statute barred under domestic law but not statute-barred under foreign law.

Once all debts have been paid by the ancillary administrator in accordance with domestic law, funds are remitted to the principal administrator.  They may then be distributed among beneficiaries under the law of the domicile.

Recognition Foreign Grant

A foreign grant of probate or representation is not recognised.  A domestic grant is required to recover assets within the jurisdiction.  If the personal representative succeeds in obtaining assets without a grant, he may be liable as an executor de son tort.

A foreign personal representative may assert personal rights even though they are connected with the estate.  If he has obtained adjustment abroad, he can enforce adjustment in Ireland without a grant or probate.