Probate and administration of a will

Darith

My Step father died recently of cancer. Made a will a few months after been diagnosed. Got a letter a month after he died from a solicitors firm with whom he had wrote a previous will. My mother contacted her solicitor and assured her that the recent will cancelled all previous wills. However he wanted to do probate and administer for the estate which consists of some money and some land. My question why does this have to be done and does it have to be done so soon. Are there tax implications. Sorry for my ignorance in this matter?

Hogzy

Darith wrote: »

My Step father died recently of cancer. Made a will a few months after been diagnosed. Got a letter a month after he died from a solicitors firm with whom he had wrote a previous will. My mother contacted her solicitor and assured her that the recent will cancelled all previous wills. However he wanted to do probate and administer for the estate which consists of some money and some land. My question why does this have to be done and does it have to be done so soon. Are there tax implications. Sorry for my ignorance in this matter?

Did your father terminate the previous will? If they both conflict then things could get a little complicated.
Solicitor is under a duty to administer the will once the testator passes away. A will must be terminated or a codicil (adding to existing will at a later stage) must exist.
Are you dealing with 2 separate solicitors?

Darith

Hogzy wrote: »

Did your father terminate the previous will? If they both conflict then things could get a little complicated.
Solicitor is under a duty to administer the will once the testator passes away. A will must be terminated or a codicil (adding to existing will at a later stage) must exist.
Are you dealing with 2 separate solicitors?

As far as i know he did not. My mother's current solicitor is the same solicitor with whom my step father drew up the most recent will. The previous will was drawn up with a different firm of solicitors.

ravima

newest will almost always cancels all other previously made wills. If the current will does not contain that paragraph, then whoever drew it up has a problem.

As regards Probate, the Executor has the right to chose the solicitor.

If the assets, ie land and money were held in joint names with your mother, then she would nomally get them into her name easily enough.

Make sure that whoever is chosing the solicitor, that they agree a flat price with him/her at the start, rather than a percentage of the assets as some like to charge.

A simple transfer of land/house to a spouse should only cost around €1/€3K.

Darith

Hogzy wrote: »

Did your father terminate the previous will? If they both conflict then things could get a little complicated.
Solicitor is under a duty to administer the will once the testator passes away. A will must be terminated or a codicil (adding to existing will at a later stage) must exist.
Are you dealing with 2 separate solicitors?

I forgot to mention that the previous will left the estate to his relatives. The most recent will left everything to my mother. Any conflicts there ?

Darith

Hogzy wrote: »

Did your father terminate the previous will? If they both conflict then things could get a little complicated.
Solicitor is under a duty to administer the will once the testator passes away. A will must be terminated or a codicil (adding to existing will at a later stage) must exist.
Are you dealing with 2 separate solicitors?

ravima wrote: »

newest will almost always cancels all other previously made wills. If the current will does not contain that paragraph, then whoever drew it up has a problem.

As regards Probate, the Executor has the right to chose the solicitor.

If the assets, ie land and money were held in joint names with your mother, then she would nomally get them into her name easily enough.

Make sure that whoever is chosing the solicitor, that they agree a flat price with him/her at the start, rather than a percentage of the assets as some like to charge.

A simple transfer of land/house to a spouse should only cost around €1/€3K.

I take it the Executor is my mother in this case. Thanks for the tip about fees as this is something i would not know.

234

The will should specify the executor, if not you will need to get letters of administration in order to be able to distribute the estate. As ravima pointed out a standard will will contain a provision cancelling all previous wills. Have you had a look at the will? It would answer some of your questions.

Hogzy

Darith wrote: »

I forgot to mention that the previous will left the estate to his relatives. The most recent will left everything to my mother. Any conflicts there ?

Thats a HUGE conflict. It is vesting the property in two entirely different people. I really think you need to have a talk with your solicitor and heads need banging together. A solictor should never allow there to be two will existing where one has not been terminated. Its shoddy work and could be quite costly down the line. Get it sorted ASAP.

Executor should be named in the will, it is up to them to sort it out.

Strictly

Did he make the first Will before he married your mother? I was under the impression that if you got married you had to make a new will, I could be wrong...

Hogzy

Strictly wrote: »

Did he make the first Will before he married your mother? I was under the impression that if you got married you had to make a new will, I could be wrong...

You dont have to make a new one but your old one becomes invalid automatically

coylemj

Hogzy wrote: »

Solicitor is under a duty to administer the will once the testator passes away.

Only if he (the solicitor) is named as executor which would be unusual.

OP, if the second will was drawn up by a solicitor then it is 99.99999% certain that the will started off by revoking any previous wills made by your step-father. Even the DIY wills contains this clause so I wouldn't regard the first will as a threat plus as a poster has pointed out, getting married effectively kills any wills already made unless the will was made in anticipation of the marriage.

Section 85 of the Succession Act 1965...

85.—(1) A will shall be revoked by the subsequent marriage of the testator, except a will made in contemplation of that marriage, whether so expressed in the will or not.

http://www.irishstatutebook.ie/1965/en/act/pub/0027/sec0085.html#sec85

The solicitor who drew up the second will should be asked to write to the first solicitor stating that (1) the first will was revoked by the subsequent marriage of the deceased to your mother and (2) there is a later will which explicitly revokes the first will. This will signal to the other relatives that they are out of the loop, i.e. they have been effectively disinherited.

As the surviving spouse, your mother is entitled to an absolute minimum portion of the estate regardless of what any will says. If your step-father had surviving children (by your mother or a previous wife) then your mother is entitled to one-third of the estate, if there are no children then she is entitled to one-half of the estate. This means that even if the second will is defective, she cannot get less than half the estate.

coylemj

OP you've been giving us conflicting data regarding the issue of whether the second will explicitly cancelled the first will......

In your original post you stated:

My mother contacted her solicitor and assured her that the recent will cancelled all previous wills.

I think you meant to say 'My mother contacted her solicitor and he assured her that the recent will cancelled all previous wills.' - the bold word 'he' inserted by me as a suggested omission by you.

Then Hogzy asked you 'Did your father terminate the previous will? If they both conflict then things could get a little complicated.'

To which you answered: As far as i know he did not.

Which conflicts with what you appeared to say in your original post. As I said in my post immediately above this one, it is almost certain that if a will is drawn up by a solicitor that it starts by revoking all previous wills and even if it (the second will) did not explicitly revoke the first will, the act of getting married killed it anyway so I would venture to suggest that the first will is now completely worthless.

The main task for you now is to communicate to the solicitor who drew up the first will that the deceased got married subsequent to making that will at which stage the solicitor who has that will in his safe will realise that it's not worth the paper it's written on, even without the subsequent will.

You also need to find out if an executor is named in the will and get that person to negotiate a flat fee for the probate as ravima recommended above. Bear in mind that the executor doesn't have to use the solicitor who drew up the will even if there is a clause in the will which appears to mandate that he is used for the purpose. Such a clause is often inserted by a solicitor when he draws up a will but it is not binding on the executor, he can use any solicitor he chooses or even do the probate himself without a solicitor.

Darith

My mother has since decided to go ahead with the probate. However the probat office now want copies of the bank statements of my late step father. Why would they want these ?

coylemj

Probate involves drawing up a statement of all of the assets of the deceased, that means bank accounts, the valuation of a car if he owned one, land, property, everything. The balance in each bank account at the date of death will be required as part of this information gathering exercise.

I can't see why you have a problem with this, what did you think probate was going to involve?

If all of your stepfather's assets are going to your mother then she has an unlimited exemption threshold so she will not pay any tax but they have to gather the information either way.

Darith

My mother rang me and was worried that she be liable for tax or her pension/medical card would be affected. I am nearly sure because of the value of the assets involved there would be no tax plus i cannot see it affecting the pension/medical card.

coylemj

If she is inheriting money and/or assets then it certainly might affect her eligibility for a non-contributory (means-tested) pension and the medical card. Whether it does or not depends on the value of the estate she is inheriting.

She can't inherit the assets of her husband in secret because the process calls for a certain amount of transparency.