,

Extracting a Grant of Probate in Ireland from Abroad

If you have been appointed executor in a Will of a deceased person who had property in Ireland and you live abroad below are some things you will need to do before extracting a Grant of Probate in Ireland.

  1. Obtain the original Will

First of all, in order to extract a grant of probate in Ireland you will need the original will.  As is frequently the case, a deceased may die leaving assets in multiple jurisdictions but might have only one Will dealing with assets worldwide.  In such a situation you will need to first apply for a grant of probate (or equivalent thereto) in the country with which the deceased had the most permanent connection, also known as the ‘country of domicile’ on death.  In such circumstances, where the deceased’s domicile on death is not Ireland, an official sealed and certified copy of the grant of probate with will attached thereto issued by the relevant probate registry in the country of domicile is required to apply for a grant of probate in Ireland.  There are ways in which an Irish Grant of Probate in respect of the foreign Will may issue without applying for a foreign grant as you will see by following this link but the procedure just outlined is the most common way of dealing with this scenario.

  1. Complete a Schedule of Assets of the Deceased

In every case, you will need to complete and submit an Inland Revenue Affidavit or a CA24 to the Irish Probate Office with your application for a grant of probate.  The Inland Revenue Affidavit includes a list of all of the assets and liabilities of the deceased in Ireland and elsewhere as of the date of death.  It also seeks information about the beneficiaries and other matters.  This is the document which takes the most time to complete as if there are numerous beneficiaries it can be time consuming to find the necessary information to complete this document. Guidelines on how to complete this form are available here.

  1. Land/Property in Ireland

In order to complete the Inland Revenue Affidavit you will need to see evidence of the deceased’s interest in land in Ireland.  In Ireland, property is either Registered Land – in which case there exists a document called a ‘folio’ which would have the deceased’s name on it (unless it is held under a trust or is owned by a wholly owned company of the decased), and would constitute conclusive evidence of the deceased’s title – or Unregistered Land – in which case the property will be held under a deed of conveyance, a lease, an assignment (of a leasehold interest) or a deed of assent (this is a deed which records transmission on death).

You should obtain an original or a certified copy of all folios, leases, deeds of conveyance, assignments and assents, where appropriate in respect of each property owned by the Deceased in Ireland as of the date of death.  The information in the relevant documents would be necessary to complete the Inland Revenue Affidavit.

  1. Bank Accounts

 You will need Certificates of Balances as of the date of death in respect of each bank account owned by the deceased in Ireland as of the date of death.  Once you inform the financial institution of the death, after having provided an official death certificate, a Certificate of Balance should issue to you.

  1. You will need an Original or Certified Copy of the Death Certificate or Interim Death Certificate

Apply to obtain a copy of the death certificate by following this link. There is a small charge for the death certificate which is €40 at the time of writing.

If the issue of a death certificate depends on the outcome of a Coroner’s Report, you can apply to the Dublin Coroner’s Office for an interim death certificate by following this link.  The interim death certificate should issue free of charge.

  1. Irish Resident Beneficiaries

 In the Inland Revenue Affidavit you will need to state the name, address and PPS Number of each Beneficiary of the estate who is likely to inherit €16,800 or more.  Usually the beneficiaries are named in the will but other personal information might not be known.  Non-Irish resident beneficiaries might not have PPS Numbers and they may need to apply to the Department of Social Protection for one which could take up to 12 weeks which would delay your application to the Probate Office.  An application for a grant of probate is incomplete without a PPS number for an non-Irish resident beneficiary and will not be accepted.  It is therefore important for you to obtain PPS Numbers of Beneficiaries at the outset where possible.

  1. Non-Irish Resident Beneficiaries – Appointment of a Practising Solicitor in Ireland

If you as executor are non-Irish resident and you have no co-executors who are, prior to submitting your application to the Probate Office, you will need to appoint a practising solicitor in Ireland to act as a tax collection agent for any capital acquisitions tax arising on inheritances to be received by a non-resident beneficiary – see section 45AA and section 48(10) of Capital Acquisitions Tax Consolidation Act 2003 (as inserted by Finance Act 2010) -.  The solicitor, as tax collection agent, will be secondarily liable to pay inheritance tax on the non-Irish resident beneficiary’s benefit and various procedures apply before s/he can release the benefit to the beneficiary entitled.

 Foreign Assets and Foreign Estate/ Inheritance Tax

 Taxation on death differs from country to country.  Some countries levy a charge on the assets of the estate on death (such as in the United Kingdom) and other countries (including Ireland) levy a tax on inheritances received by beneficiaries. See here for Revenue Outline of inheritance tax in Ireland.

A foreign tax liability should be included in the Inland Revenue Affidavit if it arises on the date of death and if it is charged to the estate.

A common situation is the following: a deceased dies domiciled in Ireland leaving assets both in Ireland and in the United Kingdom.  A tax liability arises on the assets of the estate in the UK on the date of death and interest thereon accrues from 6 months thereafter.  The executor is unable to access funds in the estate either in Ireland or the UK to discharge the UK tax liability because a grant of probate in Ireland (and consequently in the UK) has not yet issued.  Even when an Irish grant of probate has issued, a UK grant of probate is required to access funds there.  Due to the current delays in processing grants of probate in Ireland it is often the case that grants of probate do not issue within six months of the date of death and interest on late payment of tax in the UK is incurred.  There is at present no way of avoiding liability for payment of interest in this situation.

Whilst it is outside the remit of this article, an executor should be aware that if a tax liability arises both in Ireland and in another jurisdiction in respect of the same asset one of the 74 double taxation agreements between Ireland and 74 other countries (see Revenue Commissioner’s list here ) might operate to relieve a beneficiary of some or all of the burden that arises.

In summary whilst being appointed an executor in a Will is an honour it is not without its responsibilities.  Not only does an executor need to ensure that the Inland Revenue Affidavit is complete s/he then needs to distribute the assets of the estate amongst the beneficiaries according to the terms of the Will which can be difficult in contentious situations. An experienced solicitor in probate matters would assist an executor in corresponding with beneficiaries, various lending institutions and tax authorities to acquire the information necessary to complete the Inland Revenue Affidavit, and would collect and distribute assets of the estate according to the terms of the Will.  A solicitor would assume the role of Irish Resident Agent for inheritance tax purposes if necessary.

© March 2018

 

If you would like to comment on or require further information in relation to the content of this article please contact deirdre@amoryssolicitors.com or your usual contact at Amorys Solicitors, telephone 00353 1 213 59 40.

, ,

Changes to the Employment and Investment Incentive Scheme in Budget 2016

Changes have been introduced to the Employment and Investment Incentive Scheme (“EIIS”) in section 16 of the Finance Bill 2015 which will no doubt be welcomed by investors and businesses alike.  The relevant changes apply to shares issued in an EIIS qualifying company to an investor on or after 13th October 2015.

The EIIS provides for income tax relief for investors of up to 41% of their investment to a limit of €150,000 each year up to 2020 in qualifying companies once certain conditions are met by both parties.

The relief is given by way of a deduction from the total income of the investor.  This means that the qualifying amount of the investment is taken out of the tax computation entirely (save for the universal social charge computation).  The qualifying amount of investment will either be 30/41 or 11/41 of the investment (see below) or an amount of unused relief carried forward from previous years.  Most investors are taxed at the higher rate of tax, currently being 41%. Accordingly the tax or monetary saving to an investor purchasing shares from an EIIS qualifying company rather than a non-EIIS qualifying company can be as much as 41% of the amount invested.

There is no tax advantage to qualifying companies but securing EIIS status may enhance their ability to attract external funding.

The relief is granted to investors in two tranches: the first tranche is a guaranteed relief of 30/41 of the amount invested and may be claimed by the investor in the first two years after investment is made however the second tranche being 11/41 of the amount invested is conditional and may be only claimed once certain targets have been achieved by the qualifying company. For instance prior to the Finance Bill 2015 the targets were the following:-

  1. That the number of employees had increased and the average wage of employees had not been reduced; or
  2. The qualifying company had increased its expenditure on research and development.

Target no.1. above has been tweaked by the Finance Bill 2015 to be an increase in staff numbers, by a minimum of one member of staff, and an increase in total wages by a minimum of the wages of one member of staff.

The EIIS has now been extended to include companies engaged in nursing home and international financial services trades.  In addition medium sized[i] enterprises already engaged in a trade and having a registered office in “non-assisted areas” will be eligible for the relief.

In brief, the following amendments were introduced to the EIIS by Finance Bill 2015:-

  1. Micro[ii], Small[iii] and Medium Enterprises at any stage of development in any part of the State may now qualify for EIIS.
  2. The limits on the amounts that can be raised by companies have increased from.
    • €2,500,000 to €5,000,000 in any 12 month period and
    • €10,000,000 to €15,000,000 in the lifetime of the company.
  3. The minimum period for the holding of shares in an EIIS company, and for the company to remain a qualifying company for EIIS, has been increased from 3 to 4 years
  4. A qualifying company must qualify for a Tax Clearance Certificate at the time of applying to Revenue for EIIS status.
  5. Internationally traded financial services are now considered to be a qualifying trade under EIIS subject to certification by Enterprise Ireland.
  6. Nursing homes and nursing homes which incorporate residential care units are now considered to be a qualifying trade under EIIS. Furthermore monies raised under EIIS can be used to expand the capacity of the Nursing Homes or Residential Care Units.
  7. Qualification criteria for the second tranche of relief (i.e. the further 11/41 of the investment) has been changed from an increase in staff numbers and average wages, to an increase in staff numbers, by a minimum of one member of staff, and an increase in total wages by a minimum of the wages of one member of staff.
  8. The EIIS now operates under the conditions set out in the EU Commission’s General Block Exemption Regulations on State Aid (2014).  This is a set of 43 exemptions from the requirement of prior notification and commission approval for State Aid purposes.

Further details of these changes can been viewed in section 16 of the Finance Bill 2015 (http://www.finance.gov.ie/sites/default/files/Finance%20Bill%202015%20As%20Initiated.pdf)

 

(c) October 2015, Deirdre Farrell, solicitor and AITI Chartered Tax Adviser, Amorys Solicitors, Suite 10, The Mall, Sandyford, Dublin 18



[i] A medium sized company is defined in the relevant legislation as a company with less than 250 employees and annual turnover not exceeding €50m or an annual balance sheet not exceeding €43 million

[ii] A Micro sized company is a company with less than 10 employees and an annual turnover not exceeding €2 million

[iii] A small sized company is defined in the relevant legislation as having less than 10 employees and a turnover not exceeding €10 million.

,

Revenue Clampdown on Gifts to First Time Purchasers – How could this affect you?

There has been much comment in the media recently about how Revenue intends to tax gifts made by parents to their children towards the purchase of their first home.

Amorys have come across a number of scenarios relating to this new move.  The following answers to frequently asked questions may be helpful.

 

Q.1     

My parents are giving me €20,000 towards the purchase of my first home, will I have a tax liability?

 

A.

The amount of tax to be paid depends on the total value of gifts or inheritances you receive from your parents during your lifetime.  At present children are entitled to receive a maximum of €225,000 from their parents (including gifts and inheritances) tax free.  This is called a ‘capital acquisitions tax group threshold A amount’.  Any amount received over and above that is subject to capital acquisitions tax at 33%.

 

Q.2.    

How do I know what gifts are taken into account during my lifetime?  I went to one of the highest fee paying schools in Ireland, will that be taken into account? 

 

A.

No.  There is an exemption from capital acquisitions tax in respect of gifts made by a donor for the maintenance, education and support of their child during that donor’s lifetime, provided that expenditure is reasonable having regard to the financial circumstances of the donor.  The Finance Act 2014 restricted this exemption to gifts made for the support, maintenance and education of the donor’s child as long as the child is under 18 OR under 25 and in receipt of full time education OR permanently incapacitated by reason of physical or by mental infirmity from maintaining himself or herself.

 

Items that would not come within the above exemption would be 1,000 shares in Facebook bought in your name during 2012 for example or university fees paid for you now at the age of 27 to go to Harvard Medical School.  The market value of the gift on the date you acquire an interest therein is the value to be taken into account.

 

Q.3.       

My partner and I are purchasing a property worth €1,000,000. My  parents are wealthy and gave me €300,000 towards a deposit.  The remaining amount of the purchase price will be funded by our joint savings which come to €300,000 in total and the proceeds of a mortgage of €400,000.  We will both be named jointly on the title deeds.  Will either of us have a tax liability?  I ‘used up’ my capital acquisitions tax threshold A amount a long time ago, but my partner has not received a gift or inheritance from anyone during her lifetime.

 

A.            Scenario 1

Whether or not you or your partner will have a tax liability depends on what beneficial interest either of you has in the €300,000 that your parents kindly gave you towards the purchase of your home.  If your parents intended the gift to go towards your interest in the property alone, you would have a tax liability of €99,000 (i.e. 33% of the gift) as you have already used up your capital acquisitions tax group threshold amount.

.

Total tax to be paid if you receive the full amount of the gift = €99,000

 

A. Scenario 2

 

If however your parents intend to gift €300,000 to you and your partner in equal shares, you would have a tax liability of €33,000 (33% of €150,000).

In this situation, your partner would be deemed to receive a gift from a stranger in blood and capital acquisitions tax group threshold amount C of €15,075 would apply.  Anything above that amount is taxed at 33%.   Accordingly your partner would have to file a tax return and pay €44,525.25 to the Revenue calculated as follows:-

Market value of Gift                                       €150,000

Less:

Capital Acquisitions Tax

Group  Threshold Amount C                         (€15,075)

Taxable balance                                            €134,925

 

Tax at 33% to be paid                                 €44,525.25

 

Total tax to be paid if you and your partner receive the gift in equal shares = €77,525.25 (€33,000 + €44,525.25).

The foregoing amount of tax will need to be paid out of your own resources as if your parents were to fund the tax payment this would also be considered a gift for tax purposes and further tax liability would arise.

 

Summary

In summary receiving a gift can be expensive!

If any of the above circumstances apply to you or a variant of them, you should seek expert advice as further legal and taxation issues may well arise other than those explained above.

We hope the above is helpful however please note the foregoing should not be considered as comprehensive legal or taxation advice and should not be used to replace consultation with a legal professional or any other qualified expert.  If the reader has any queries in relation to any aspect of the above scenarios, please contact Deirdre Farrell at 01 213 59 40 or email us at info@amoryssolicitors.com.

 

© January 2015

,

Budget Highlights for Property Owners and First Time Buyers

Property Owners and First Time Buyers might like to note the following proposals contained in the recently published Finance Bill 2014 (“the Bill”) that will be of relevance to them.

 

1.Home Renovation Incentive Scheme extended to include Rental Properties

The Home Renovation Incentive Scheme which operates by way of an income tax credit @ 13.5% on qualifying expenditure on repair, renovation or improvement works carried out to a qualifying property is to be extended to include expenditure on rental properties on or after 15th October 2014.  A tenant must occupy the rental property at the time the works are carried out or within six months of that time and the landlord must be subject to income tax on the rental receipts in order to claim the credit.  Any unused tax credit may be carried forward for use in future years.

 

2.  Capital Gains Tax Exemption Not Extended. Property must be acquired on or before 31st December 2014

The capital gains tax exemption for land or buildings acquired between 7 December 2011 and 31st December 2014 and owned for seven years will not be extended beyond 31st December 2014.  Whilst the purchase of the property should ideally have been completed by 31st December 2014 in order to claim the relief, if an unconditional contract for the disposal of the property has been signed before the end of 2014, the exemption should be available even if the sale does not close until after that date.

 

3.  Abolition of Windfall Tax

It is proposed that the 80% windfall tax arising on the rezoning of land will be abolished with effect from 1st January 2015.  This will no doubt push many property owners with sites for sale into the property market.

 

4. Rent a Room Relief Increased to €12,000 per annum

The threshold for exempt income under the Rent a Room Scheme is being increased to €12,000 per annum from the current amount of €10,000.

 

5.  Refund of DIRT @41% on interest on savings for First Time Purchasers

The Bill introduces new provisions for a refund of DIRT (currently at 41%) that has been deducted from interest on savings used by first time purchasers to buy a house or apartment for use as their place of residence. A  First time purchaser is defined as an individual who has not either individually or jointly, previously purchased or built any other house or apartment.  The legislation provides for a refund of DIRT to be made to the purchaser on making a claim. Details of how to make a claim will be published shortly by Revenue.  The refund applies to DIRT deducted from interest paid on savings by the first time purchaser (up to a maximum of 20% of the consideration paid for the dwelling) at any time up to a 48 month  period up to the date of the conveyance to the purchaser.  The relief will be available from 14th October 2014 until 31st December 2017 and does not apply to self builds or sites.

 

6. Income tax Credit for Payment of Water Charges

It is proposed that an income tax credit @ 20% of expenditure incurred on water charges (up to a maximum of €500) per annum will be available for water charges paid during any period of assessment.

 

For more information on the above please contact Deirdre Farrell, Solicitor and AITI Chartered Tax Consultant (CTA)

 

Amorys Solicitors, Suite 10, The Mall, Beacon Court, Sandyford, Dublin 18 © November 2014

,

Capital Gains Tax Exemption extended to 2014 – Good News for Property Purchasers

The reader will be aware that an Irish tax resident individual or company is liable to Irish tax on worldwide income and gains. This means that a gain arising on the disposal of property by an Irish tax resident, wherever situate, is liable to Capital Gains Tax (CGT), the rate of which currently stands at 33%.

In an attempt to stimulate the Irish property market the Government has introduced a CGT exemption for all properties that were purchased between the Finance Act 2012 budget date i.e. 7 December 2011 and 31st December 2013.  This relief has now been extended by the Finance (no.2) Act 2013 41/2013 to cover all purchases bought up to and including 31st December 2014.

 

Tax Free Sale

It will be of interest to investors to note that where a property is purchased between the above mentioned dates and such property is held for a period of greater than seven years, the gains attributed to that seven year period will be exempt from CGT.

There is no obligation for the investor to sell the property after seven years. Where such property is held for a period of greater than seven years, any chargeable gain arising in subsequent years will be reduced in the same proportion that 7 years bears to the period of ownership of the land or building.

For example, if a building which has been held for 10 years is disposed of, the chargeable gain in respect of that that building will be reduced by seven-tenths.

 

Property within the EEA – 30 Jurisdictions

The relief applies to “land or buildings” i.e. residential or commercial properties within countries of the EEA (i.e. the countries of the European Union, Lichtenstein, Iceland and Norway) Presumably for reasons to do with EU rules against state aid, the relief applies to all such property located in the European Economic Area, including Ireland.

 

Limitations

In order for the relief to apply the property must be acquired for a consideration equal to the market value, or if acquired from a relative, not less than 75% of the market value on the date acquired.  It should be noted that new legislation underpinning the relief contains anti-avoidance measures and provisions designed to guard against artificial arrangements.

 

Update

Following last week’s Budget 2015 announcement, Minster for Finance Micahel Noonan has confirmed that the CGT relief is to expire on 31 December 2014. Investors should be aware that there is now only a limited window of opportunity to avail of this incentive.  We offer a fast and efficient conveyancing service should you wish to acquire a suitable property

For more information on the above please contact Deirdre Farrell, Solicitor and AITI Chartered Tax Consultant (CTA), Amorys Solicitors, Suite 10, The Mall, Beacon Court, Sandyford, Dublin 1. Tel: 01-213 59 40 

© January 2014 and October 2014