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  #1  
Old 18-02-2013, 08:14 AM
Brendan Burgess Brendan Burgess is offline
 
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Default Rights of a beneficiary; Who is entitled to see a will? and related issues

I can't find a simple guide to this issue anywhere online and it seems to come up a lot. I am going to comile an FAQ from my general knowledge. I will ask the questions and give what I think are the answers. Corrections or fuller answers welcome.

What is the procedure after a person dies where there is will?
1) The executor applies to the Probate Office for a Grant of Probate otherwise known as a Grant of Representation
2) The Grant of Probate confirms that the will is valid and gives the executor the authority to administer the estate in accordance with the will.
FLAC sets out the procedure in detail
3) The probated will is now a public record
4) With the probate granted, the executor now has the authority to collect the assets into their own name with a view to distributing them to the beneficiaries.

When and where can I see the will?
Once Probate has been granted, the will is a matter of public record.

You can call into the Probate Office or you can apply for a copy of the Probate and Will by post. Full details are in the first reply to this post.


Have I a right to see the will before Probate is granted?
No, the Executor is not obliged to show you the will.

However, if you know who the Executor is, you can ask them.

Do I really not have the right to see my father's will, even if I am the sole beneficiary?
Not until Probate is granted

How do I challenge the will?
You can lodge a caveat with the Probate Office claiming, for example, that the will was forged.

How can I challenge the will if I don't know what is in it?
You will have to wait until Probate has been granted.

Is it not too late to challenge the will after Probate is granted?
No. The Grant of Probate only confirms that the will is valid and that the Executor has been validly appointed. At that stage, the assets will not have been distributed.

What can I do if the Executor is very slow in taking out probate or in dealing with the will? Maybe there was no need to take out Probate. If the assets were all held in joint accounts, for example, with your mother, there was no need to take out probate.

Generally, you can't do anything about it within 12 months of the death.

If an Executor has confirmed that he has the will, but he has done nothing about it, and is not responding to your correspondence, contact your solicitor.

If an executor fails to act it is possible for the beneficiaries to issue a Citation leading to the Executor having to accept or refuse a Grant.

This thread sets out the one person's experience where the Executor was in conflict with the sole beneficiaries:

The Executor is doing absolutely nothing

Can I object to the way the Executor is handling the estate?
I am the main beneficiary but the Executor is selling my father's house for less than I think it is worth. Does he need my permission?

Can I get a final account of what happened? For example, what was the final total of assets and who got them? What did the Executor charge the estate?
Only the residual beneficiary is entitled to this. If the Will specified that you were to receive €1,000 and you got your €1,000, then you have no further rights.

If the will specified that you were to receive the remainer of the assets after the specific bequests had been distributed, then you are entitled to receive a full account of all the assets and how they were distributed.

The Executor is just sitting on the assets and not distributing them?
If the Executor is a solicitor, then you should write formally to him for an explanation of the delay.
If he does not respond, you should write again, and notify him that you will be making a formal complaint to the Law Society, if he does not respond.

Where can I get more information?
The Probate Office itself is very helpful and will guide you through the process. However, they don't give legal advice.

If you want to lodge a caveat or if you want to challenge a will, consult a solicitor.

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  #2  
Old 18-02-2013, 08:47 AM
Brendan Burgess Brendan Burgess is offline
 
Location: Dublin
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Records available to the public:

Once a grant of probate has issued, copies of the grant and the original will may be obtained on payment of the appropriate fee by any member of the public.




The Records Office of the Dublin Probate Office holds the records for grants which have issued within the past 20 years.



The Probate Office also holds records of all grants which have issued from the 14 District Probate Registries within the past 20 years. These records are for reading purposes only. To get copies of documents when the grant issued in a District Probate Registry contact that Registry directly.


You can apply for a search and / or copy documents by post by completing Form PAS1 and paying the relevant fee. The information notes contained in that form provide further information about conducting searches and applying for copy documents. The form specifies the Dublin Probate Office requirements.
If you are applying to a District Probate Registry, contact that registry first to confirm any special requirements that registry might have.


You may also attend in person at the Dublin Probate Office to apply for a search or for copy documents. If you wish to inspect the records when attending you must provide 48 hours notice as the records will have to be retrieved from storage. Files retrieved for inspection will be available for 5 days. After that period, they will be returned to storage.


District Probate Registries


In addition to the Probate Office there are fourteen District Probate Registries located outside Dublin. See the links to the right for contact details for the various registries.

These registries are attached to Circuit Court Offices under the control of County Registrars.
They have authority to issue grants of representation where the deceased, at the time of his/her death, had a fixed place of abode within the area of jurisdiction of the District Registry.
For example, if the person died having a place of abode in Co. Clare, the application for a grant of probate may be made to the District Probate Registry at Limerick.
The application may be made in person or through a solicitor.elated liMayo
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  #3  
Old 18-02-2013, 09:07 AM
Bronte Bronte is offline
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Not sure it it's still the case but I requested to see a will from Co. Roscommon and it was in Galway court house that I got it as those wills are/were not in Dublin.

Through this I discovered a close relation of mine had handwritten a will and got it signed by an elderly relative leaving his property to the will writer - all done in a nursing home and properly witnessed. I know that a beneficiary cannot witness a will but I'm not sure if it's ok for them to physically 'write' the will but it's something you could add to the key post maybe.
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  #4  
Old 18-02-2013, 09:40 AM
Brendan Burgess Brendan Burgess is offline
 
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Hi Bronte

I wasn't aware that you could see wills locally. It makes sense. I have posted the details in the second post.


I am trying to keep this FAQ to the most Frequently Asked Questions on the rights of beneficiaries . It's not a general FAQ on wills. However, if you wanted to compile an FAQ on "How to challenge a will" , it would complement this FAQ very nicely. It could cover

Valid reasons for challenging the validity of a will
Invalid reasons for challenging the validity of a will
Step by step guide
Who pays legal fees and how much they might be
Links to Legal Cases


Even if you don't know all the answers, you can still compile an FAQ. Other posters will answer them for you or correct any of the answers you provide.
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  #5  
Old 18-02-2013, 09:52 AM
Bronte Bronte is offline
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Quote:
Originally Posted by Brendan Burgess View Post
Hi Bronte

I wasn't aware that you could see wills locally. It makes sense. I have posted the details in the second post.


.
I think it was peculiar to Galway/Roscommon only but maybe it's all changed now.
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  #6  
Old 04-03-2013, 09:22 AM
Odea Odea is offline
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My sister is a beneficiary on my fathers will. Her husband is the executor. She has access to my fathers will that is in her husband's possession. The rest of the family are not allowed to see the will. Can the executor be allowed to do this?
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  #7  
Old 07-03-2013, 02:06 AM
beffers beffers is offline
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Yes and no. Family members do not have an automatic right to see a deceased persons will, only the named beneficiaries of the will do. However, those beneficiaries are only entitled to see the part of the will that pertains to them, and not the will in its entirety.

The executor can choose to disclose the entire wills contents to beneficiaries, but he does not have to if he chooses not to. As your sister has a relationship with the executor of the will she may be in the know as to what the entire will contains, not just the part that pertains to her. The executor is failing in his duties if he is giving one beneficiary more access to the wills contents than others, but its a tricky situation to put your foot down on seeing as she is his wife.

If a family member is not named in the will at all, the executor doesn't have to show them a thing if he doesn't want to.
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  #8  
Old 07-03-2013, 09:49 AM
Odea Odea is offline
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Thanks Beffers. I meant to say that myself and my brother are also beneficiares to my fathers will. My father is still alive and in a nursing home. My sister has seen my fathers will in it's entirety because her husband is the executor.
She recently called to the nursing home and asked my father to alter his will. She wants him to include his grandchildren as beneficiaries. This was the reason she gave to us, her two brothers.
We are concerned by the fact that she has knowledge about the will and we don't and that if the will is changed she may tweet it to her advantage.
Our father is very elderly and vulnerable.
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  #9  
Old 07-03-2013, 01:35 PM
Vanilla Vanilla is offline
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Why and how does the executor have the will? This should only be at the express permission of the Testator since he is alive.
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  #10  
Old 07-03-2013, 02:51 PM
Odea Odea is offline
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My father believes that this is the correct thing to do. He only has a small wardrobe in his nursing home to store stuff.
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  #11  
Old 07-03-2013, 08:44 PM
Vanilla Vanilla is offline
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Nobody has a right to see the will- executor, beneficiary or otherwise while your father is alive. It is completely private. However your father can choose to show a copy of the will to anyone he wants.
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  #12  
Old 07-03-2013, 09:06 PM
max max is offline
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Quote:
Originally Posted by Brendan Burgess View Post
If the assets were all held in joint accounts, for example, with your mother, there was no need to take out probate
This obviously means that if everything is in joint names when one party to the marriage dies, there is no need for a will(assume no mortgages/debts)??
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  #13  
Old 07-03-2013, 10:54 PM
Marion Marion is offline
 
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If the assets were all held in joint accounts, for example, with your mother, there was no need to take out probate

Some accounts have 2 names: eg: the father and the child. However, the child is just a named person on the account as opposed to being a co-owner of the account in the event of death of the father.

Marion
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  #14  
Old 08-03-2013, 07:29 AM
Odea Odea is offline
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Quote:
Originally Posted by Vanilla View Post
Nobody has a right to see the will- executor, beneficiary or otherwise while your father is alive. It is completely private. However your father can choose to show a copy of the will to anyone he wants.
Thanks Vanilla. It's just that my father has given his will to his executor for safe keeping and it is the executor who is showing the will to my sister, a beneficiary. When my father dies could we lodge some sort of complaint or object to him being the executor?
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  #15  
Old 08-03-2013, 07:45 AM
Bronte Bronte is offline
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Quote:
Originally Posted by Odea View Post
I meant to say that myself and my brother are also beneficiares to my fathers will. .
You don't know this, you may have been told this by your father, and that may have been his intention, but your sister may have managed to 'persuade' him to change the will in her children's favour and leave you out altogether. If he is fully with it mentally he is entitled to do this.

Personally if it were me and I had a sibling carrying on as you'd outlined I'd want a family conference. Better now then when it's too late.
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  #16  
Old 08-03-2013, 11:47 AM
Vanilla Vanilla is offline
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Quote:
Originally Posted by Odea View Post
When my father dies could we lodge some sort of complaint or object to him being the executor?
Not for the reason you're giving here- ie that he showed the will to another beneficiary and not to you.
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  #17  
Old 08-03-2013, 11:48 AM
Vanilla Vanilla is offline
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Quote:
Originally Posted by Marion View Post
If the assets were all held in joint accounts, for example, with your mother, there was no need to take out probate

Some accounts have 2 names: eg: the father and the child. However, the child is just a named person on the account as opposed to being a co-owner of the account in the event of death of the father.

Marion
A very important point of distinction.
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  #18  
Old 10-03-2013, 08:02 PM
truthseeker truthseeker is offline
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Quote:
Originally Posted by Brendan Burgess View Post

This thread sets out the one person's experience where the Executor was in conflict with the sole beneficiaries: The Executor is doing absolutely nothing
That was my thread. In summary:

My parents died, myself and my sibling came across a will while going through their possessions. We took the will to a solicitor and asked what we should do with it. An uncle of mine was named executor. Our solicitor wrote to our uncle to inform him a will had been found with him named as executor. The uncle in question was not happy with our relationship with his brother (our father), wasnt on speaking terms with us, and so decided to do nothing.

The estate was simple, just the family home, no other assets, nothing owing anywhere. Myself and sibling were the only beneficiaries.

We handed over all relevant documentation to our solicitor along with the will (the deeds of the house etc..).

We had our solicitor send a letter asking if the executor wished to renounce executor duties and contact was made saying that he would act, but then he continued to do nothing.

We were becoming more and more frustrated and distressed as time passed, we just wanted the estate dealt with. On top of this we had insured the house at our own expense and had it cleaned out, plus we had dealt with the utility companies and tried to make things as easy as possible for the executor to just get on with it. We both felt he was just trying to prolong our misery out of spite.

After another letter from our solicitor it looked as though things were about to move - but 2 months later, probate still not started. At this stage it was 10 months since my parents had died.

Then there was some messing about whereby the executors solicitor refused to deal with some things, and tried to charge my sibling directly for a house valuation and then basically silence for a number of years.

In the end, almost 3 years passed and for most of that time the house was on the market at a silly price which prevented sale.

I only found out the property had been sold by accident. I drove past one day and it was being renovated. The executors solicitor then proceeded to drag out the distribution of monies. We had no visibility of what was spent where at this point. My sibling had aggravated the situation negatively a few times during this.

Eventually after a number of angry phonecalls and delays, the estate was distributed and the executors accounts made available to us. My uncle had charged the estate for ridiculous expenses and his solicitor had charged a lot for the work.

The only option left to us was to sue both uncle and his solicitor - but so much time had passed and we knew that it would only be throwing away more money - so I said no to that and my sibling didnt proceed alone.

I was very dissatisfied with the entire process. It cost me money to get things moving in the first place and delay after delay happened for no good reason bar the personal feelings of the executor. The housing market was at its peak when the will was first handed over and the house was not sold until almost 3 years later.

It is a flawed process. There was a lot of stress in the 3 years. I was not able to move on from my parents death until it was all sorted out.
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