What happens upon probate?

KOR1

This is just a general question about legally what happens when probate is granted.

Is it the case that the estate assets become the property of the beneficiaries at that point. I'm thinking in particular of assets like a house which will be jointly owned by the benficiaries. What powers do the executors have over the sale of that house, once probate has been granted.

Many thanks.

dermot_sheehan

When a person dies the legal interest of their estate vests in the President of the High Court.

When probate is extracted, the legal interest vests in the executors/administrator which is held for the benefit of the beneficiaries in the will/persons entitled to the estate on intestacy if no will.

dats_right

gabhain7 wrote: »

When a person dies the legal interest of their estate vests in the President of the High Court.

When probate is extracted, the legal interest vests in the executors/administrator which is held for the benefit of the beneficiaries in the will/persons entitled to the estate on intestacy if no will.

No, I don't think that is quite accurate. Certainly that is so in the case of an Administrator, but in the case of an Executor, his/her powers and duties arise from the date of death and under law the whole estate of the testator passes to the executor and not the President of the High Court. In practical terms, it may well be necessary to extract a Grant of Probate to administer certain aspects of an Estate, such as; large bank accounts, life insurance polices, property (not passing by survivorship), etc. But in many cases a Grant of Probate is not required, especially in cases where there are no large assets, in which case the Executor has full legal right and usually will collect in and administer an estate without any involvement of the Courts or formally proving the will.

Indeed it could potentially be negligence for a solicitor to advise an executor to extract a Grant of Probate when none is required.

In any event, to answer the OP's original question

in particular of assets like a house which will be jointly owned by the benficiaries. What powers do the executors have over the sale of that house, once probate has been granted?

It depends on whether those assets were held jointly as joint tenants, which is virtually universally the case in spousal cases, or whether the property was held as tenants in common. The distinction is very important because in the former case, the property would pass automatically on death by survivorship to the surviving joint owner and would form no part of the deceased's Estate, accordingly the Executor's would have no powers whatsoever over such property.

dermot_sheehan

dats_right wrote: »

No, I don't think that is quite accurate. Certainly that is so in the case of an Administrator, but in the case of an Executor, his/her powers and duties arise from the date of death and under law the whole estate of the testator passes to the executor and not the President of the High Court. In practical terms, it may well be necessary to extract a Grant of Probate to administer certain aspects of an Estate, such as; large bank accounts, life insurance polices, property (not passing by survivorship), etc. But in many cases a Grant of Probate is not required, especially in cases where there are no large assets, in which case the Executor has full legal right and usually will collect in and administer an estate without any involvement of the Courts or formally proving the will.

Indeed it could potentially be negligence for a solicitor to advise an executor to extract a Grant of Probate when none is required.

In any event, to answer the OP's original question It depends on whether those assets were held jointly as joint tenants, which is virtually universally the case in spousal cases, or whether the property was held as tenants in common. The distinction is very important because in the former case, the property would pass automatically on death by survivorship to the surviving joint owner and would form no part of the deceased's Estate, accordingly the Executor's would have no powers whatsoever over such property.

Sorry you're correct, it's only for intestacy it devolves on the President og the High Court