Executor / will / Jurisdiction

cnocbui

I am trying to sort out an property inheritance matter. The property is in Ireland, the Will setting out disposition was drawn up in Australia and the testator died there.

I gather from inquiries that Irish law and Australian law would differ in deciding who would be the appropriate person to act as executor. Under Australian law I would be the Executor, but under Irish law that likely would not be the case, though getting a straight answer on this has been unaccountably difficult.

Could I engage a lawyer in Australia to act on my behalf as Executor and have the property title transferred as per the intent set out in the Will?

exaisle

Does the will name the executor? If not, are you the main beneficiary?

Why engage a solicitor in Australia if the estate is in Ireland?

If you're in Ireland, you can apply for grant of probate in person...and engage a solicitor to carry out any conveyances required under the terms of the will...

cnocbui

exaisle wrote: »

Does the will name the executor? If not, are you the main beneficiary?

Why engage a solicitor in Australia if the estate is in Ireland?

If you're in Ireland, you can apply for grant of probate in person...and engage a solicitor to carry out any conveyances required under the terms of the will...

Thank you for your reply.

The beneficiaries are my children. My mother was named as executor with myself also named were she unwilling or unable to fulfill the role. She did indeed act as Executrix as far as she was able, but died before the children reached an age stipulated in the Will. She named me as her executor, a function I performed.

Under Australian law, I would inherit my mothers original Executrix function, hence my thinking of engaging Australian solicitors to carry out the conveyance.

I have been vaguely informed that under Irish law, I would not be seen as the executor, and that a person living in Australia might be seen to take on that function, a person who is unrelated to the beneficiaries and who has no real interest in seeing the Will executed. Because of the lack of clarity about this, I have deduced that sorting this out from an Irish perspective might be drawn out and costly.

Indricotherium

cnocbui wrote: »

Thank you for your reply.

The beneficiaries are my children. My mother was named as executor with myself also named were she unwilling or unable to fulfill the role. She did indeed act as Executrix as far as she was able, but died before the children reached an age stipulated in the Will. She named me as her executor, a function I performed.

Under Australian law, I would inherit my mothers original Executrix function, hence my thinking of engaging Australian solicitors to carry out the conveyance.

I have been vaguely informed that under Irish law, I would not be seen as the executor, and that a person living in Australia might be seen to take on that function, a person who is unrelated to the beneficiaries and who has no real interest in seeing the Will executed. Because of the lack of clarity about this, I have deduced that sorting this out from an Irish perspective might be drawn out and costly.

But the property is in Ireland?

cnocbui

Yes.

linola_c

Hi OP

I don't see how you wouldn't be seen as an executor of the will under Irish law. The testator has nominated your mother and in circumstances, where she is unable to fulfil her duties, (ie since passed away), you are the substituted or contingency executor.

Had your mother already applied for a grant of probate? This should be your first port of call. As long as the will meets the formalities of making a valid will in Ireland (which are much the same in Australia - see s 78 of the Succession act 1965), I do not see why you could not apply for a grant of probate here. As noted above, the property is in Ireland and strictly speaking, an Australian court may not have jurisdiction over foreign assets.

Are the only assets under the will located in Ireland or are there also assets located in Australia?

cnocbui

linola_c wrote: »

Hi OP

I don't see how you wouldn't be seen as an executor of the will under Irish law. The testator has nominated your mother and in circumstances, where she is unable to fulfil her duties, (ie since passed away), you are the substituted or contingency executor.

Had your mother already applied for a grant of probate? This should be your first port of call. As long as the will meets the formalities of making a valid will in Ireland (which are much the same in Australia - see s 78 of the Succession act 1965), I do not see why you could not apply for a grant of probate here. As noted above, the property is in Ireland and strictly speaking, an Australian court may not have jurisdiction over foreign assets.

Are the only assets under the will located in Ireland or are there also assets located in Australia?

Thanks for replying. I am lead to understand that because my mother took up the duties of executor, that for some reason extinguished my nominated role. Yes, probate was taken out in Ireland some time ago and the only assets of current relevance are in Ireland.

The big difference seems to be that Australian law would see me inheriting my mothers exutorship role but that Irish law doesn't. The person who has been suggested as perhaps fulling that role is in Australia, is not related to my children and has no motive to see the will executed as intended and would have the significant disincentive of doing anything of having to personally pay out of their own pocket to get a lawyer in Ireland to have the title transferred.

I get that an Australian court has no jurisdiction in Ireland but I was rather hoping that a lawyer in Australia could represent me under Australian law as executor and request the title transfer be done.

Lockedout2

cnocbui wrote: »

Thank you for your reply.

The beneficiaries are my children. My mother was named as executor with myself also named were she unwilling or unable to fulfill the role. She did indeed act as Executrix as far as she was able, but died before the children reached an age stipulated in the Will.

Was she a trustee rather the an executrix?

Is the property in a trust until the child reaches a certain age?

cnocbui

Lockedout2 wrote: »

Was she a trustee rather the an executrix?

Is the property in a trust until the child reaches a certain age?

No, she was an executrix. There is not a trust but the terms of the will were that the property was to be vested when the children reached 18.

linola_c

cnocbui wrote: »

Thanks for replying. I am lead to understand that because my mother took up the duties of executor, that for some reason extinguished my nominated role. Yes, probate was taken out in Ireland some time ago and the only assets of current relevance are in Ireland.

.

Yes, given that you were a 'contingency executor' and the GOP actually issued, you would no longer be entitled to become an executor (open to correction on this but I believe this to be the case).

However, in the circumstances where the administration of the estate has not been completed and the appointed executor has died, a second grant must be otbained which in this instance, would be known as 'a grant of letters of administration with will annexed de bonis non (unadministered probate).

Who can apply for this type of grant is set out in Rules of the Superior Court, 1986, order 79 and includes the residual legatee or devisee. If there is no residuary clause in the will, then the priority for whom might extract the grant is made in accordance with the rules of intestacy (as follows - (a) the surviving spouse;
(b) the surviving spouse jointly with a child of the deceased nominated by the said spouse;

(c) the child or children of the deceased (including any person entitled by virtue of the Legitimacy Act, 1931, to succeed to the estate of the deceased);

(d) the issue of any child who has died during the lifetime of the deceased;

(e) the father or mother of the deceased or, in the case of an illegitimate person who died without having been legitimated, the mother;

(f) brothers and sisters of the deceased (whether of the whole or half-blood);

(g) where any brother or sister survived the deceased, the children of a predeceased brother or sister;

(h) nephews and nieces of the deceased (whether of the whole or half-blood);

(i) grandparents;

(j) uncles and aunts (whether of the whole or half-blood);

(k) great grandparents;

(l) other next-of-kin of nearest degree (whether of the whole or half-blood) preferring collateral's to direct lineal ancestors;

(m) the nominee of the State;
.the residual legatee or devisee becomes entitled to extract a grant of administration.

I am not in any way a specialist in probate but just trying to assist you in understanding the present situation.

You are also correct that in Australia (specifically NSW, remember that each state, territory in Aus has its own differences and this would need to be checked in the state in issue) that if an executor dies after a testor and after obtaining probate of the estate but before the estate is finalised, the executor of the deceased executor takes over both estates. if however, grants have not bee obtained, it is the principal beneficiary which is entitled to apply for the grant of admin with will annexed.

cnocbui

Many thanks for that very informative reply.

I think I need to find and engage a probate expert. I know recommendations are not allowed on Boards.

A solicitor I have used did recommend someone to me and said they worked out of the law library. I contacted same and asked after the person and was told they had moved elsewhere and that they would forward my contact details, but I never received a reply.

Any ideas on how I might track down this elusive person?

linola_c

Check this -https://www.lawsociety.ie/Find-a-Solicitor/Solicitor-Firm-Search/

I believe that the law library only works with barristers and I don't think that you can engage a barrister directly. That may explain why you never received any response.

Good luck.

cnocbui

linola_c wrote: »

Check this -https://www.lawsociety.ie/Find-a-Solicitor/Solicitor-Firm-Search/

I believe that the law library only works with barristers and I don't think that you can engage a barrister directly. That may explain why you never received any response.

Good luck.

Many thanks. Strange my lawyer didn't mention that and suggested my getting in contact.