The guide highlights the procedures for extracting a grant of representation in Ireland in circumstances where the deceased possessed property within Ireland.
This is also relevant to administering the estate of a deceased person who leaves behind property assets in the Republic of Ireland but who has died in another jurisdiction.
As the Irish continue their march across the globe, I am seeing all types of private international succession law issues arising more frequently in this jurisdiction.
Foreign Domicile
When a person dies domiciled outside of the Republic of Ireland, but leaving property here, the grant will be given according to the law of the country of the deceased’s domicile at death where the property is movable, but according to Irish law (lex situs) where the property is immovable.
Section 102(1) of the Succession Act, 1965 provides that a testamentary disposition shall be valid as regards form, if it complies with the internal law:
(a) of the place where the testator made it, or
(b) of a nationality possessed by the testator, either at the time when he made the disposition, or at the time of his death, or
(c) of the place where the testator made it, or
(d) of a nationality possessed by the testator, either at the time when he made the disposition, or at the time of his death, or
(e) of a place in which the testator had his domicile either at the time when he made the disposition, or at the time of his death, or
(f) of a place in which the testator had his domicile either at the time when he made the disposition, or at the time of his death, or
(g) so far as immovables are concerned, of the place where they are situated.
Both Movable and Immovable Estate in this Jurisdiction
The applicant must show entitlement under Irish law by showing title in the oath, and must show entitlement under law of domicile by lodging:
(i) a sealed and certified copy of the grant (and will, if applicable) from the appropriate court in the country of domicile; or
(ii) where no such grant has issued, an affidavit of law from a lawyer practising, or who has practised, in that jurisdiction.
Movable Estate Only in this Jurisdiction
The applicant must show entitlement under law of domicile by lodging:
(i) a sealed and certified copy of the grant (and will, if applicable) from the appropriate court in the country of domicile;
or
(ii) where no grant has issued, an affidavit of law from a lawyer practising or who has practised in that jurisdiction.
If the applicant also has entitlement under Irish law, such title should be shown in the oath and a full grant in respect of both movable and immovable estate can issue.
If, however, the applicant does not have entitlement under Irish law, a grant limited to the movable estate only can issue under Order 79, rule 5(8)(a) of the Rules of the Superior Courts.
Immovable Estate Only in this Jurisdiction
The applicant must show entitlement under Irish law by showing title in the oath.
If the applicant can also show entitlement under the law of domicile, i.e. a sealed and certified copy grant (and will, if applicable) or an affidavit of law, a full grant in respect of both immovable and movable estate can issue.
If, however, the applicant does not show entitlement under the law of domicile a grant limited to the immovable estate can issue pursuant to Order 79, rule 5(8)(a) of the Rules of the Superior Courts.
Foreign Domicile and Executor Applying in this Jurisdiction
Where the deceased died domiciled outside of Ireland and where a grant has been extracted by the executor in the jurisdiction of domicile and where the executor intends applying for a grant in this jurisdiction, the normal set of executor papers should be lodged.
The only difference is that a sealed and certified copy of the will and grant (from the court of foreign domicile) is exhibited in the oath (i.e. in place of the original will).
A full grant can issue in these cases. (If the attorney of the executor is applying, the documents for a grant of administration with will annexed must be prepared by the attorney.)
Foreign Domicile and Same Applicant is Applying in this Jurisdiction
Where the deceased died domiciled outside of Ireland and where a grant has been extracted in the country of domicile and where the same applicant intends to apply for a grant in this jurisdiction (and has title here) and where the will is not in a foreign language, the process is again straightforward.
The normal set of papers should be lodged with the application, along with a sealed and certified copy of the grant (and will) if applicable (from the court of foreign domicile). Entitlement under Irish law is set out in the oath and the sealed and certified copy grant will confirm entitlement under the law of domicile. Hence, a full grant can issue.
Will in a Foreign Language
Where there is a foreign language will, it is necessary to obtain a Probate Officer’s order before lodging the application for a grant of representation.
Requirements for an Affidavit of Law
The affidavit should be sworn by an independent lawyer practising, or who has practised, in the relevant jurisdiction. His/her qualification to make the affidavit should be stated. The following matters should be dealt with:
1. The facts of the particular case should be set out and all relevant documents exhibited.
2. The legislation of the relevant jurisdiction governing entitlement to administer the deceased’s estate should be referred to and quoted.
3. Whether a grant has issued in the country of domicile.
4. When the affidavit is required to deal with the validity of a foreign will the legislation of the relevant jurisdiction governing the requirements for the valid execution of a will should be referred to and quoted.
5. When the affidavit is required to show entitlement to extract a grant, it should state who is or are the person or persons entitled to administer the deceased’s estate under the law of the country of domicile.
6. If more than one person is entitled to administer the estate, it should be stated whether they are entitled to administer independently of each other, or if all must administer together.
Types of Grant of Representation
A grant of representation is a document granted under seal by the High Court which gives authority to a named person (or persons) to deal with a deceased’s person’s estate.
The three most common types of grants of representation are:
Grant of Probate
When a person dies leaving a valid will and appointing an executor, a grant of probate issues to the executor. The person’s assets are dealt with by the executor, according to the terms of the will. The deceased is said to have died testate. If any of the follow applicable documentation are not part of the application, the Probate Office may refuse to issue the Grant:
o Original Will and Codicil (if applicable) and Engrossment
o Death Certificate
o Oath of Executor (and copy)
o Renunciation of Executor (if applicable)
o Inland Revenue Affidavit
o Schedule of Lands
o Affidavit of Attesting Witness (if required)
o Affidavit of Plight and Condition
o Affidavit of Testamentary Capacity (if required)
o Charitable Bequest Form (if required)
Grant of Letters of Administration with Will Annexed
When a person dies without having made a valid will, they are said to have died intestate. A grant of letters of administration issues to the person or persons who were the nearest next of kin at the date of death. Next of kin is determined by the Succession Act 1965. The following proofs are required:
o Original Will and Codicil (if applicable) and Engrossment
o Death Certificate
o Oath of Administrator (and copy)
o Renunciation of Executor (if applicable)
o Inland Revenue Affidavit
o Schedule of Lands
o Affidavit of Attesting Witness (if required)
o Affidavit of Plight and Condition
o Affidavit of Testamentary Capacity (if required)
o Charitable Bequest Form (if required)
o Power of Attorney (if applicable)
o Evidence of Current Market Value of Property
o Bond
Grant of Letters of Administration Intestate
When a person dies leaving a valid will and a person other than the executor applies, a grant of letters of administration with will annexed issues to the person entitled by law. When the grant issues to the applicant, he or she is called the legal personal representative. The application must include:
o Death Certificate
o Oath of Administrator (and copy)
o Inland Revenue Affidavit
o Schedule of Lands
o Evidence of Current Market Value
o Bond
o Justification of Surety
For every type of Grant it is important to note that a Personal Public Service (PPS) number is required for a deceased person or for beneficiary resident overseas.
Lack of a PPS number will result in the affidavit being returned to the executor/solicitor, thereby causing a delay in the processing of the application for the Grant of Representation. The Department of Social Protection (Client Identity Services) will need to be contacted prior to any application being made for a Grant of Administration.