In January 2014 we published Irish Origin, an article for UK based practitioners to assist in dealing with Irish assets as part of UK based estates.

At that time we described the Irish probate process as, at times, complicated and lengthy.

Now some seven years on, post Brexit and post Covid, we examine what has changed and what remains the same. Again we must conclude that, despite efforts to streamline, the process remains at times a complicated and lengthy one.

When is an Irish grant required?

Irish grants continue to be required when dealing with substantial Irish assets, such as bank accounts over €25,000 or assets such as shareholdings or land. Post Brexit we have seen more UK based residents holding Irish bank accounts or investments to ensure a continued European holding. Thus, we expect more Irish grants will arise in the context of UK estates in the future.

When is an Irish solicitor required?

In general, a non-resident applicant executor/administrator will be required to appoint a solicitor to extract a grant in Ireland. This requirement remains unchanged and originates from the Capital Acquisitions Tax (CAT) regime in Ireland. CAT is an Irish tax levied on gifts and inheritances.

The CAT regime requires that a non-resident applicant for a grant in Ireland must appoint a solicitor in Ireland to extract the grant. The solicitor will be classed as an agent and will carry a secondary liability for any CAT due on behalf of non-resident beneficiaries in the estate. Thus, an Irish solicitor is normally required when dealing with an Irish asset in a UK estate.

What information will be required?

The level of information required by the Irish solicitor has now increased due to new Irish Revenue Commissioners compliance post death procedures. These procedures now require confirmation be given of the deceased’s Irish Income Tax and Capital Gain Tax (CGT) history for a 10-year period pre death.

In summary, the following information is required:

  1. The deceased’s details and original death certificate.
  2. A list of worldwide assets and liabilities along with date of death valuations.
  3. Due Diligence questionnaire completed with the deceased’s 10-year pre death history regarding Irish Income Tax and CGT.
  4. Sealed and certified copy will and grant, if applicable.
  5. Affidavit of Laws in certain circumstances, such as if there is no will or grant in the UK.
  6. Confirmation of beneficiaries and contact details. The Irish solicitor will then contact the beneficiaries to provide confirmation of previous gifts and inheritances subject to CAT.
  7. PPS numbers (Irish Social Security numbers) for the deceased and all beneficiaries due to inherit over €12,000. The Irish solicitor will assist in the application for PPS numbers if required.

The application process

The probate process in Ireland is similar to that in the UK, namely:

A. Gather all the information regarding the deceased, the estate and the beneficiaries.

B. Draft the application – an oath of executor/oath of administrator incorporating a bond and a detailed return to the Irish Revenue Commissioners in the form of a statement of affair form (S.A.2).

C. Once the grant issues, gather in the assets and distribute them to those entitled after receipt of clearance from the Irish Revenue Commissioners.

Substantial efforts have been made since our last article to streamline this process with limited success.

Recent changes

The online filing of the S.A.2 is now the first document lodged in the probate application. This return to the Revenue Commissioners replaces the previous 20-page Inland Revenue Affidavit.

This streamlined online return is a snapshot as at date of death and details the deceased’s personal details, family situation, assets, liabilities, and beneficiaries. The process for the return has been streamlined and effectively eliminates queries arising at this stage.

There have also been significant developments in the Irish Probate Office to ensure that the documents required for an application for a grant are less cumbersome. In this regard, administration bonds have now been incorporated into administration oaths and the wording and contents of oaths are now less complex and modernised.

Crucially, the need for a UK sealed and certified grant remains, and this continues to result in queries when not provided to the probate officer in Ireland.

Delays and errors

Despite these improvements, there are unfortunately significant backlogs in the Irish probate system. At the moment there is a 14-week backlog from the date an application is lodged to the date that a grant will issue.

The Irish Probate Officer has provided guidance regarding this backlog and the reasons behind it. He has also confirmed that under no circumstances will any applications be expedited. The rational for this is that, if applications were to be expedited, it would increase the standard backlog for all other applicants.

The Irish Probate Officer has also alluded to the fact that there is a significant error rate in the papers provided to his office.

The Irish Probate Office has confirmed that, in solicitor applications to his office there is an error rate of approximately 50 –70%. This means that the majority of applications prepared and lodged by Irish solicitors are resulting in queries.

Most often the queries relate to the applicant not having a clear and sufficient title to extract the grant.

In the event that a query is raised regarding an application lodged with the Probate Office, a penalty fee to re-submit of €40.00 will apply. Further, the application will be put at the back of the queue in terms of the backlog. In effect, this can mean that an application is lodged, assessed after 14 weeks, a query raised, and the application returned to the solicitor. A re-submission fee will then be due once the papers are relodged. A further 14-week backlog will then apply before the papers are reassessed and the grant issued.

The importance of using a competent and specialist solicitor cannot be overstated within such a system.

Effectively, a client’s waiting time can double if a query is raised.

Top tips to avoid delays and queries

Despite the similarities between the Irish and UK systems, there are often great differences in respect of the title of applicants to extract grants.

For example, difficulties arise with the frequent practice in England of appointing companies as executors in wills. It is important to note that the Irish Probate Officer does not recognise companies as having any title to extract a grant. Therefore, should an Irish grant be required, it would be best that the will appoints a director of the company as at date of death. If a company has been appointed, it will be necessary to apply to the Irish High Court for an order appointing someone to act for the purpose of extracting the Irish grant. This is a costly step.

Further, the Irish Probate Officer equally has no lawful authority to recognise foreign divorces. In intestate cases this results in a renunciation being required from the former spouse. Alternatively a court application to appoint someone to act for the purpose of extracting the Irish grant must be made.

Lastly, the Irish Probate Officer cannot recognise the title of an attorney under a lasting power of attorney unless there is a registration in Ireland. Thus, in such cases an application is usually made to the High Court to appoint someone to act for the purpose of extracting the Irish grant. This application tends to be less cumbersome than an application to register the lasting power of attorney in Ireland.

In summary

It is vital that expert advice is obtained at an early stage to avoid the delays incumbent in the Irish system.

It is clear that the Irish probate system has undergone many improvements in the last seven years, however, unfortunately delay remains and the need for an Irish solicitor to act as agent in foreign applications remains. The selection of the Irish solicitor to act as agent is of critical importance.

In circumstances where there are likely to be more UK residents with Irish holdings, UK solicitors are more likely to encounter the need for an Irish grant.

This is likely to be a one impact of Brexit. However, prior to Brexit there were two distinct legal systems and no resealing of grants. Thus, the system of applying for a grant in both jurisdictions remains unchanged.

In summary, the most important thing is to spot an Irish asset when it arises, to get expert legal advice as regards the steps required to access same and to ensure that the Irish legal adviser is competent to undertake this work.

 

Maria Lakes is partner and Maria Crawford is senior probate legal executive at Tracey Solicitors