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Terms of a will.

  • 25-11-2016 11:54pm
    #1
    chicorytip
    Registered Users, Registered Users 2 Posts: 4,257 ✭✭✭


    I'm looking for advice regarding the possibility of having the terms of somebody's will altered where the will is uncontested and there is agreement on the issue between the beneficiaries. The issue relates to the proceeds from the sale of a property whereby one beneficiary wishes to forego their share of the monies completely and have it distributed equally amongst the others. Legal advice received to date suggests that this is not possible once the process of probate has been concluded. I would be interested to hear the opinions of others with expertise in this particular area.
    Thank you.


Comments

  • #2
    nuac
    Registered Users, Registered Users 2 Posts: 6,769 ✭✭✭nuac


    Mod
    Solicitor time
    Will leave thread open for now for general comment, but remember the rule aganst legal advice


  • #3
    chicorytip
    Registered Users, Registered Users 2 Posts: 4,257 ✭✭✭chicorytip


    nuac wrote: »
    Mod
    Solicitor time
    Will leave thread open for now for general comment, but remember the rule aganst legal advice
    Yes, of course. I understand.


  • #4
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    A deed of family arrangement can be used to vary a will. Tax advice is needed in situations where a beneficiary renounces rights. Unless this is handled carefully it could have tax implications for the ultimate recipients of the legacy.


  • #5
    Mr. Incognito
    Registered Users, Registered Users 2 Posts: 9,798 ✭✭✭Mr. Incognito


    Theres a supreme court case on this.

    I dont think it can be done.

    The executors role is to faithfully administer the terms of the will.


  • #6
    coylemj
    Registered Users, Registered Users 2 Posts: 25,620 ✭✭✭✭coylemj


    The person who wants to forego their inheritance is effectively attempting to make a gift of money to the other people and wants to see if they can do so under cover of the would-be recipients' CAT exemption thresholds (based on their relationship to the deceased) but if probate has already been granted then I can't see the revenue allowing it.


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  • #7
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    coylemj wrote: »
    The person who wants to forego their inheritance is effectively attempting to make a gift of money to the other people and wants to see if they can do so under cover of the would-be recipients' CAT exemption thresholds (based on their relationship to the deceased) but if probate has already been granted then I can't see the revenue allowing it.

    It all depends on how it is structured. It happens frequently in litigation that it is compromised by way of a deed of arrangement. Some forms of words do trigger a liability and some don't. I don't want to be any more specific given the charter.


  • #8
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    Mr. Incognito wrote: »
    Theres a supreme court case on this.

    I dont think it can be done.

    The executors role is to faithfully administer the terms of the will.

    What is the case?


  • #9
    P. Breathnach
    Registered Users, Registered Users 2 Posts: 12,089 ✭✭✭✭P. Breathnach


    Nobody can be forced to accept a bequest. If somebody leaves me €X, and I refuse it, then the €X becomes part of the residue, and is distributed accordingly.


  • #10
    brian_t
    Registered Users, Registered Users 2 Posts: 6,787 ✭✭✭brian_t


    P. Breathnach wrote: »
    Nobody can be forced to accept a bequest. If somebody leaves me €X, and I refuse it, then the €X becomes part of the residue, and is distributed accordingly.

    Even after probate has been concluded ?


  • #11
    GerardKeating
    Registered Users, Registered Users 2 Posts: 7,805 ✭✭✭GerardKeating


    brian_t wrote: »
    Even after probate has been concluded ?

    But a bequest could not be distributed before probate, so not option to really refuse.


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  • #12
    P. Breathnach
    Registered Users, Registered Users 2 Posts: 12,089 ✭✭✭✭P. Breathnach


    brian_t wrote: »
    Even after probate has been concluded ?
    Your question has already been answered (correctly, in my opinion) but your phrasing brings to mind an interesting further question: is probate ever concluded? There is, so far as I can see, no way of putting on record that an estate has been finally wound up. Suppose an asset was discovered 10 years after the executor had made a supposedly-final distribution. In my opinion, it is for the executor to deal with it.


  • #13
    coylemj
    Registered Users, Registered Users 2 Posts: 25,620 ✭✭✭✭coylemj


    GerardKeating wrote: »
    But a bequest could not be distributed before probate, so not option to really refuse.

    But what's to stop a person named as a beneficiary in a will from renouncing his inheritance before probate is granted?


  • #14
    coylemj
    Registered Users, Registered Users 2 Posts: 25,620 ✭✭✭✭coylemj


    chicorytip wrote: »
    The issue relates to the proceeds from the sale of a property whereby one beneficiary wishes to forego their share of the monies completely and have it distributed equally amongst the others.

    On the face of it, this would amount to an inheritance followed by a gift (to 'the others') which would give rise to a double liability under CAT rules.

    Revenue say the following....

    4. A disclaimer in favour of a named person is considered as an acquisition and a subsequent disposal and therefore there is a double charge to CAT.

    But..... if the disclaimer is unconditional then the asset(s) falls into the residue in which case there is no CAT liability for the person renouncing their inheritance but in the OP's case, the property may be divided differently, based on who got the residue.

    5. A disclaimed legacy falls into residue.

    http://www.revenue.ie/en/tax/cat/guide/disclaimer.html
    chicorytip wrote: »
    Legal advice received to date suggests that this is not possible once the process of probate has been concluded.

    The person who gave that advice is clearly of the view that it's now too late to renounce the inheritance so the beneficiary has acquired ownership of that property, whether they want it or not.


  • #15
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    P. Breathnach wrote: »
    Your question has already been answered (correctly, in my opinion) but your phrasing brings to mind an interesting further question: is probate ever concluded? There is, so far as I can see, no way of putting on record that an estate has been finally wound up. Suppose an asset was discovered 10 years after the executor had made a supposedly-final distribution. In my opinion, it is for the executor to deal with it.

    Probate never ends. There is always the possibility of an undiscovered asset coming to light or assets coming in from another estate. The issue is not that probate is complete but distribution has taken place. The grant of probate is only a starting point, not an end. Pre-distribution renunciation of gifts is relatively common.


  • #16
    chicorytip
    Registered Users, Registered Users 2 Posts: 4,257 ✭✭✭chicorytip


    coylemj wrote: »
    But what's to stop a person named as a beneficiary in a will from renouncing his inheritance before probate is granted?
    Yes. The will, in this case, has only recently been sent for probate.


  • #17
    coylemj
    Registered Users, Registered Users 2 Posts: 25,620 ✭✭✭✭coylemj


    chicorytip wrote: »
    Yes. The will, in this case, has only recently been sent for probate.

    So based on the legal advice you got and which you mentioned in your first post, has the person who wishes to disclaim his/her inheritance written to the executor to formally do so? If they did, did they do so in favour of the people you refer to as 'the others'?


  • #18
    P. Breathnach
    Registered Users, Registered Users 2 Posts: 12,089 ✭✭✭✭P. Breathnach


    coylemj wrote: »
    So based on the legal advice you got and which you mentioned in your first post, has the person who wishes to disclaim his/her inheritance written to the executor to formally do so? If they did, did they do so in favour of the people you refer to as 'the others'?
    If a beneficiary renounces "in favour of the others" that is tantamount to gifting them his or her share of the estate, and might attract tax liability. If a beneficiary renounces more generally, then the inheritance is left in the general pot. It might go to the others (depending on how the residue is to be dealt with) and it might qualify for a more favourable tax treatment.


  • #19
    coylemj
    Registered Users, Registered Users 2 Posts: 25,620 ✭✭✭✭coylemj


    P. Breathnach wrote: »
    If a beneficiary renounces "in favour of the others" that is tantamount to gifting them his or her share of the estate, and might attract tax liability. If a beneficiary renounces more generally, then the inheritance is left in the general pot. It might go to the others (depending on how the residue is to be dealt with) and it might qualify for a more favourable tax treatment.

    +1 I highlighted this to the OP in post #14.


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