Succession

Estate constitution

What property constitutes an individual’s estate for succession purposes?

All property beneficially owned by an individual in his or her sole name will form part of an individual’s estate, save where the property is the subject of a nomination, statutory or otherwise. All property held by a nominee of which the deceased is the beneficial owner will form part of his or her estate.

All interests held by a deceased by way of tenancy-in-common will also form part of an individual’s estate. Where property is held by joint tenancy, the deceased’s interest in that property will pass to the surviving joint tenants according to the rules of survivorship.

Disposition

To what extent do individuals have freedom of disposition over their estate during their lifetime?

Individuals have complete freedom of disposition over lifetime dispositions as there is no community property regime in Ireland. However, regardless of whether the disponer died testate or intestate, the court may order that the disposition shall, wholly or partly, be deemed to be a devise or a bequest made by him or her by will and to form part of his or her estate, and to have had no other effect, if:

  • the deceased made a disposition of property within three years of his or her death, and the court is satisfied that the disposition was made for the purpose of defeating or substantially diminishing the share of the disponer’s spouse, whether as a legal right or on intestacy; or
  • the intestate share of any of his or her children is insufficient, or any of his or her children are insufficiently provided for.

 

In the event of a divorce or separation, the court may make an order distributing the couple’s assets that may restrict future dispositions.

To what extent do individuals have freedom of disposition over their estate on death?

Ireland operates a schismatic system of succession law. If a person dies Irish-domiciled, Irish succession law shall apply to their worldwide movable estate and their Irish immovable estate. If a person dies not Irish-domiciled but with Irish immovable property, Irish succession law shall apply to that property.

The principal legislation governing the area of succession law in Ireland is the Succession Act 1965.

There is a form of forced heirship whereby a surviving spouse has a legal right to a share in the deceased’s estate (section 111, Succession Act 1965). If the testator has left surviving children, the surviving spouse is entitled to a one-third share of the estate. If there are no children, then the surviving spouse is entitled to one-half. The spouse can renounce the legal right to a share either before or after marriage.

The courts have a discretionary power to make provision for a child (including a child born outside marriage) where satisfied that the testator has failed in his or her moral duty to make proper provision for the child and has died testate. An order will not affect the legal right to a share of a surviving spouse or any bequest to that spouse if that spouse is also the child’s parent. There are strict time limits on bringing an application.

Intestacy

If an individual dies in your jurisdiction without leaving valid instructions for the disposition of the estate, to whom does the estate pass and in what shares?

The Succession Act 1965 governs the distribution of intestate estates. If a person dies Irish-domiciled, these rules shall apply to their worldwide movable estate and their Irish immovable estate. If the person dies non-Irish domiciled, these rules shall only apply to their Irish immovable assets.

The rules of order of entitlement on intestacy are set out in the Succession Act 1965. On the death of a spouse without issue, the surviving spouse will inherit all of the estate. However, on the death of a spouse leaving children, the surviving spouse will inherit two-thirds of the estate and the children one-third of the estate divided equally between them, with a predeceased child’s issue taking that child’s share.

The nearest next-of-kin alive at the date of death of the deceased are entitled to apply to administer the estate. The Rules of Superior Courts 1986 set out the order of priority. In summary, the next of kin begins with the deceased’s surviving spouse, or the surviving spouse and children. However:

  • if the spouse is predeceased, the surviving children share equally and the issue of predeceased children take per stirpes, or per capita if all children have predeceased the intestate;
  • if no spouse or issue survive, the parents of the deceased inherit in equal shares;
  • if a person dies without a spouse, issue or parent, all brothers and sisters take equally and the children of a predeceased brother or sister take per stirpes; and
  • if no brothers or sisters survive, all nieces and nephews share equally, and so on, with a general preference for lineal descendants.

 

An administration bond is required from the applicant, which binds him or her to compensate the High Court if he or she fails to administer the estate.

Adopted and illegitimate children

In relation to the disposition of an individual’s estate, are adopted or illegitimate children treated the same as natural legitimate children and, if not, how may they inherit?

In a testate situation, with the exception of any claim made by a child under section 117 of the Succession Act 1965, a child is only entitled to whatever the will of the deceased says. The testator may have a number of different ‘types’ of children, including non-marital, unborn or adopted, or stepchildren or foster children.

In an intestate situation, a spouse is entitled to two-thirds of the estate and one-third will go to the issue. ‘Issue’ for the purposes of the Succession Act 1965 includes marital and non-marital children, adopted children and their lineal descendants. Stepchildren and foster children are not included.

Distribution

What law governs the distribution of an individual’s estate and does this depend on the type of property within it?

Movable property passes in accordance with the succession laws of the country in which the deceased was domiciled at the time of his or her death. Immovable property passes in accordance with the laws of the country in which it is actually situated. Ireland is not a party to Regulation (EU) 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions, and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (the Succession Regulation). In respect of foreign immovable property, the doctrine of renvoi is accepted in Ireland. Thus, if Irish courts adopt the rules of a foreign jurisdiction, and the rules of the foreign state refer the court back to the law of the forum where the case is heard, then the Irish courts will generally accept the reference back.

It is expected that where an Irish-domiciled individual holds property in a participating member state under the Succession Regulation, the matter will be referred back to Ireland if the deceased was habitually resident there at the time of death, or if the deceased had made an election of Irish law on the applicable succession regime to the devolution of his or her estate.

Formalities

What formalities are required for an individual to make a valid will in your jurisdiction?

Part VII of the Succession Act 1965 sets out the formalities for making a will. There is no difference in respect of the nationality, residence or domicile of the testator.

A will can be made by any person who has attained the age of 18 years (or is or has been married) and is of sound mind. A person who has attained the age of 18 years and is of sound mind can get married. A person who has not attained the age of 18 years, is of sound mind and has obtained a court exemption order under the Family Law Act 1995 can also get married. The following essential elements make a will valid:

  • the will must be in writing;
  • the testator must sign in the presence of two or more witnesses; and
  • the witnesses must sign the will in the presence of the testator.
Foreign wills

Are foreign wills recognised in your jurisdiction and how is this achieved?

Wills made in other jurisdictions are recognised as valid if they fall under one of the eight alternative systems of law set out in section 102 of the Succession Act 1965. Section 102 gives effect to the Hague Convention on the Conflict of Laws relating to the form of testamentary disposition. In addition, a testamentary disposition shall be valid if its form complies with the internal law of the place:

  • of the testator’s nationality at the time the will was made;
  • where the testator made the will;
  • in which the testator had his or her domicile, either at the time when he or she made the disposition or at the time of his or her death;
  • of the testator’s habitual residence, either at the time he or she made the disposition or at the time of his or her death; and
  • where the assets are situated (in the case of real property).
Administration

Who has the right to administer an estate?

An executor named in a will obtains the grant of probate, and his or her powers arise at the death of the deceased as the estate is vested in the personal representative from the date of death.

If there is no executor under the will or if there is an intestate situation, an administrator obtains the grant of administration. An administrator’s powers arise when the grant is issued from the probate office. During the period from the date of death to the date the grant is issued, the estate is vested in the President of the High Court.

How does title to a deceased’s assets pass to the heirs and successors? What are the rules for administration of the estate?

If an individual dies testate, his or her estate will vest in the legal personal representatives named in his or her will on death. If there is no valid will or if there is no valid executor, his or her estate will vest in the President of the High Court until a grant of administration is made by the court, at which stage the estate will vest in the appointed administrators.

The legal personal representatives or administrators must apply for the appropriate grant of representation. Upon receipt, they may obtain title to the deceased’s assets and distribute them accordingly to the beneficiaries.

Challenge

Is there a procedure for disappointed heirs and/or beneficiaries to make a claim against an estate?

A surviving spouse has a legal right to a fixed share in the deceased’s estate under the succession regime set out in the Succession Act 1965.

A child can challenge a will so that a previous advancement made to the deceased’s other children is brought into account (section 63, Succession Act 1965).

A child, while having no fixed entitlement, has the right to take action against an estate. The court may order in that child’s favour if the testator has failed in his or her moral duty to make proper provision for the child (section 117, Succession Act 1965). The court has discretion as to whether to make this provision. However, an order will not affect the legal right share of a surviving spouse.

Law stated date

Correct on:

Give the date on which the information above is accurate.

30 September 2020