Q&A

Dominic Coyle answers your financial questions

Understanding probate law

What is the meaning of putting a will to probate? What is probate? Does every will go to probate? At probate, must all one's assets be declared? Who must attend the probate proceedings?

Mr P.G., Kerry

Putting a will to probate essentially means getting the imprimatur of the Probate Office to certify that the will is valid and that all the legal, financial and tax issues are in order. This is called "proving a will" and is normally a straightforward process, assuming the will has been drawn up properly and signed in the presence of witnesses.

The Probate Office can make enquiries, such as asking to see the witnesses to a will, if it is in any doubt about the veracity of the document or if there is a confusion over two or more wills. Until probate is granted, the executor of the will cannot start executing its terms and dividing the deceased person's estate. Every will has to go to probate and, yes, all one's assets must be disclosed.

While the main purpose of probate is to ensure that the will is genuine, as I said earlier, the second element is ensuring that the deceased's affairs are in order. You don't want an executor distributing an estate only to discover there is an unpaid debt outstanding that needs to be met.

A grant of probate will depend on the presence of a death certificate and an original will, if any.

It will also require details of liabilities - including matters such as funeral bills. If there are any doubts about liabilities it may be necessary to advertise in newspapers, asking potential creditors to come forward by a particular date.

Alongside this, probate depends on provision of details of assets, including property, as well as statements up to the time of the death from any bank, building society or credit union accounts.

As to who attends probate, in general, it will be the executor's legal advisor - often one and the same person as many people ask their solicitor to act as executor. However, it is possible for a lay executor to bypass a solicitor.

While not wishing to drum up business for the legal profession, an executor would be advised to appoint a solicitor for all but the simplest of wills. It is also worth noting that anyone can object to probate on a particular will by lodging that objection with the Probate Office.

The Government information website, www.oasis.gov.ie, gives further details if necessary.

Windfall hopes

Now that the Dáil has resumed, are there any indications that the changes to the Building Societies Act to enable demutualisation might be dealt with in this session?

Mr V.F., Dublin

From the point of view of Michael Fingleton and the board at Irish Nationwide, there have been so many false dawns at this stage that they must be reluctant to raise even their own hopes at this stage to say nothing of those customers who joined the society explicitly to avail of the windfall cash handout that would materialise with demutualisation.

It must be particularly galling, especially for those who joined relatively recently and are looking at €20,000 tied up in the society's share accounts that might be used elsewhere.

Such is the life of the carpetbagger.

Of course, there are still many, probably a majority, of Irish Nationwide customers who joined as savers or borrowers of a mutual and had no great expectation of a windfall at that stage.

The only concern for them, at this stage, is that having been long-term members, they lose out now because either their mortgages get repaid or they are forced to withdraw their savings to meet commitments elsewhere - particularly for older members.

In truth, there are no greater indications that the matter will be dealt with in this session than there were in previous sessions.

There seems no logistical reason why it should not be dealt with, however. The Government and those who draft legislation appear to be comfortable that legislation can be enacted that will facilitate Irish Nationwide without upsetting its rival building society EBS which does not want to be forced down the road of demutualisation.

The biggest problem for a Government eager not to be seen to be encouraging rampant materialism is that there is no strong requirement to assist Irish Nationwide.

The only winners will be the existing members and management ... and whoever might buy their way into the Irish market by acquiring a  emutualised Irish Nationwide.

While it is little comfort to those with plans for the windfall, the truth is that politically, Irish Nationwide is currently a very low priority for the Coalition.

Please send your queries to: Dominic Coyle, Q&A, The Irish Times, D'Olier Street, Dublin 2, or e-mail to dcoyle@irish-times.ie. This column is a reader service and is not intended to replace professional advice.