Probate

Dealing with the affairs of somebody when they have passed away

Probate is the body of law dealing with the affairs of somebody when they have passed away. At Coyne Solicitors, we have a long tradition of handling Probate matters.

Probate is the appointment of the Legal Personal Representative of the deceased by Order of the High Court. The application is made to through the High Court Probate Seat Office (it is not in open court).

To extract a Grant of Probate (or Administration) the following core documents must be completed:

  • Death certificate or Interim Certificate of death
  • Revenue form SA 2
  • Oath of Executor/Administrator (s)
  • Original Will (if there is one)

In addition, the following may also be required:

  • Current market valuation
  • Oath of testamentary capacity
  • Deed of Renunciation
  • Affidavit of Law
  • Affidavit of witness
  • Affidavit of plight

 

Administration of an Estate

Administration follows after the Probate issues. It means the gathering in of all the assets of the deceased, settlement of all debts and testamentary expenses and then distribution of the balance of the Estate to the beneficiaries according to the Will (if one) or law under intestacy (no will).

 

Receiving in the assets

When the Grant of ProbateAdministration issues from the High Court the Executor (s) or Administrator(s) are appointed by the High Court as the Legal Personal Representatives of the deceased. The Legal Personal Representative then assumes all the legal power of the deceased. The first step is to receive in all the assets of the Estate. This might mean withdrawing monies from the banks/financial institutions. Cashing in life assurance policies, selling property. There may be any number of outstanding assets which must be received in. If the deceased was a party to any litigation the Legal Personal Representative will step into the shoes of the deceased and continue the litigation.

 

Discharging debts of the Estate

The Legal Personal Representative has a legal duty to pay all the lawful debts of the deceased. The debts must be paid in full before any distribution to the Residue Legatee/Devisee can take place.

 

TESTATE (where there is a will)

This is a formal application to the High Court Probate Division for the appointment of Legal Personal Representative(s) (Executor (s))of a  deceased who has executed a valid will.

 

INTESTATE (where there is no will)

Intestate means an Estate where the deceased did not execute a valid will. Even if they did make a will it may be deemed invalid for any number of technical reasons. For example, if the will was not properly witnessed if the person making the will did not have Testamentary Capacity (there is a test to establish if the Testator is capable of executing a will).  The will may be struck down due to its physical condition. It may also be partially invalid if it does not deal with all the assets in the Estate.

In all of the above, the Estate is deemed to be either Intestate or partially Intestate.

The following core documents are required to apply for the Grant of Administration:

  • Death Certificate or Interim Certificate of death
  • Inland Revenue Affidavit
  • Oath of Administrator
  • Administration Bond (this is the principal additional document to the Probate application)
  • Certificate of current market value

In addition to the above, the following documents may also be required

  • Affidavit of plight
  • Affidavit of an attesting witness
  • Affidavit of mental capacity