- 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 more than likely need to first apply for a grant of probate (or equivalent thereto) in the country with which the deceased had the most permanent connection, usually called the ‘country of domicle’ but it could also be called the country in which the deceased was ‘habitually resident’ if s/he had a connection to those member states of the EU which had subscribed to the EU Succession Regulation. The matter of the application of the EU succession regulation to each particular case where a deceased died leaving assets in several jurisdictions will need to be decided on carefully with the benefit of expert legal advice.
- Complete a Schedule of Assets of the Deceased
Assuming a grant of probate in Ireland is required, 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.
- 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.
- 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.
- 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. The interim death certificate should issue free of charge.
- 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 a 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.
- Non-Irish Resident Beneficiaries – Requirement to Appoint 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 to apply before s/he can release the benefit to the beneficiary entitled.
8.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.
For further information and advice in relation to “Extracting a Grant of Probate in Ireland from Abroad”, please contact Deirdre Farrell, partner, Amorys Solicitors firstname.lastname@example.org, telephone 01 213 5940 or your usual contact at Amorys.