Executor: Transferring property

cnocbui

As an executor, is it possible to draw up an assent to transfer a portion of a property to someone without going through a solicitor, or is engaging a solicitor the only way?

Mr. Incognito

For your own protection go through a solicitor.

Will cost you many many multiples to fix a mistake unless it is done correctly the first time.

cnocbui

I was executor for someone's estate in Australia. I was able to carry out all my functions, including transferring property, without involving a solicitor.

What does the process here involve and why does it require a solicitor?

NUTLEY BOY

I had a similar transaction about 5 years ago. I was an executor and completed the entire probate process as a personal applicant.

I then engaged a solicitor to complete the assignment transaction in order to cover my posterior legally ! I got the solicitor to draft the deed of assignment / assent, get it signed by the relevant parties and duly witnessed. I also asked the solicitor to register a memorial of the assent in the Registry of Deeds.

My primary reason in using a solicitor to tidy up this specific transaction was to make absolutely sure that the title assigned to the assignee was clean, clear and good and that there would be no comeback in the form of any potential defect of title.

Unfortunately, there is an historical element of messiness in Ireland in relation to titles of and records of older properties. It was worth the nominal fee of about €250 to ensure that the transaction was completed adequately and "in good conscience". This is why it would be prudent to engage a solicitor.

cnocbui

Well I have approached a solicitor but it seems to be going off the rails.

I have my brother's will leaving his share of a property to my children. His will grants the residue of his estate to his then wife. My brother appointed my late mother as his executor and myself, should she have been unwilling or unable to perform that task. My mother also appointed me executor of her estate.

Now, I am being told it's complicated and the wife may need to get involved because of the residue bit in his will. She lives in another country, I don't know where.

I would have thought a residue was something left over - not explicitly dealt with in the will? Is this the case?

4ensic15

cnocbui wrote: »

I would have thought a residue was something left over - not explicitly dealt with in the will? Is this the case?

And you thought you didn't need a solicitor?

cnocbui

4ensic15 wrote: »

And you thought you didn't need a solicitor?

Well I am getting a strong feeling I don't need this one, so looks like I wasn't far wrong.

Benny122

I will be left a property soon but I want to transfer it to my sister. The property will be left from my Aunt. How does the tax element work? Is it my responsibly or the solicitors to fix up the inheritance tax and transfer of property tax? What are the steps

Victor

It may be well worth your while for you and your sister to get independent advice, especially on the tax element.

The main tax issue is Capital Acquisitions Tax. http://www.revenue.ie/en/gains-gifts-and-inheritance/gift-and-inheritance-tax-cat/index.aspx Transferring from your aunt to you to your sister could become quite expensive. Transferring from your aunt direct to your sister may be complicated if your aunt is deceased.

Do I get the impression from you phrasing, that you aren't Irish / living in Ireland?

Benny122 wrote: »

I will be left a property soon but I want to transfer it to my sister. The property will be left from my Aunt.

Is your aunt still alive? Is your sister receiving anything else from the estate? Is there part of the estate that you do want? Are others receiving part of the estate?

How does the tax element work?

I understand there are probate charge, but these are relatively modest and are likely to come out of the estate directly.

Is it my responsibly or the solicitors to fix up the inheritance tax

The obligation is on you to be tax compliant, but the solicitor will do a certain amount.

transfer of property tax?

Then there is stamp duty - 1%(?) on the property transaction.

4ensic15

Benny122 wrote: »

I will be left a property soon but I want to transfer it to my sister. The property will be left from my Aunt. How does the tax element work? Is it my responsibly or the solicitors to fix up the inheritance tax and transfer of property tax? What are the steps

Taxes are your responsibility. You should obtain professional advice. Very few solicitors are qualified or experienced to advise on taxes. You don't say whether your aunt is still alive and whether or not there are other siblings or cousins.

coylemj

Victor wrote: »

It may be well worth your while for you and your sister to get independent advice, especially on the tax element.

+1 The transaction that Benny122 (post #8) is proposing is one that carries serious financial risk if done in a tax-inefficient manner.

Revenue themselves warn of the prospect of a double tax liability if you renounce your inheritance in favour of a named individual because it technically constitutes an inheritance (from the disponer to you) which can carry a tax liability and a gift (you to the named beneficiary) which can also carry a liability for tax.

If you unconditionally renounce an inheritance then you will have no tax liability but the asset then falls into the residue which may not yield the desired result.

Definitely get professional advice.