Do I really need to take out probate after my husband’s death?

Q&A: Savings, a rented property, a home abroad – there’s a lot to consider

I am recently bereaved. We had a will and everything was left to the surviving spouse. Do I need to take out probate and, if I do, how do I go about it and do I need a solicitor?

The will states that in the event of my death everything is divided between the children; is it necessary for me to now make a new will?

I have savings in An Post/EBS/credit union and I am currently having the accounts changed into my name. Is there some way I can put my children's name on these accounts to save on inheritance tax?

I have a rented property and a house abroad, do these properties need to be mentioned in the will?

I intend selling the house (abroad) now and am wondering where I could invest the money from this house. I am very risk averse, should I just continue to lodge it into the An Post accounts?

Ms FW, email

Sorry for your loss. It is obviously a very difficult time for you and your family but at least you both had a will in place which takes one element of uncertainty out of things.

Probate is a legal process that makes sure a person’s estate is managed in accordance with their wishes and obligations. Like all matters legal, there can be quite a bit of detail and form filling involved.

Does that mean you need a solicitor? Not necessarily. It depends on the complexity of your spouse’s financial affairs. If someone has good records and an estate that is fairly straightforward – the family home, a few bank accounts and maybe the odd share or two – it should be possible for you to file for probate yourself, if you are confident in doing so.

However, in general, not least because it is already a stressful time and because a mistake or missed step in the process can lead to additional delay, it is generally a good idea to let a solicitor take on the task as it is something with which they are much more familiar, obviously.

Of course, if the estate is modest, probate may not be needed at all. If the home was in both names and passes to one by survivorship, and the spouse/partner's other financial assets in their own name amount to less than €25,000, probate may not be needed at all as, in those circumstances, most banks will allow accounts to be transferred on production of a death certificate, especially where everything is coming to you.

The key thing is to make sure that any debt outstanding is taken care of; otherwise you may land yourself with unnecessary hassle down the line.

Still, personally speaking, I would consider money spent on a solicitor to supervise the probate process as money well spent.

New will

In terms of a new will, the general advice is that if our personal circumstances change, a new will is a good idea. The main purpose of a will is to clearly and unequivocally provide for the distribution of our assets when we die.

In your case, it appears from what you say that you and your husband had a joint will. These are less common but perfectly functional for some families. As long as the provisions of this will continue to reflect your wishes as the surviving spouse and you do not acquire new assets that are not provided for in it, there is no issue.

It sounds like a simple split of all assets between all children with no specific bequests; in that case, a new will may not be necessary – although you may want to stipulate that the family house be sold and the assets shared equally, for instance, to avoid a conflict between the children if some want to keep the home in the family and others want or need access to cash.

Names on accounts will clearly be changed now that you are on your own. It is certainly possible to add the children's names to such accounts. However, that, in itself, will not "save" on inheritance tax. If accounts are passing under survivorship, for capital acquisition tax purposes Revenue will look for details of how much each of the named parties contributed to the accounts to assess their tax liability. Simply adding their names to the accounts will not take them out of the tax assessment.

Property

You say you have a property abroad and another in Ireland, rented out. The Irish property should not be an issue but, depending on where the foreign property is, you might need to have a local will in place in that jurisdiction. This is something on which you should consult a solicitor familiar with foreign property dealings – or who has links with a legal firm in the country involved.

Selling this foreign property would certainly address this, though it may raise other tax issues in that country, another thing you’ll need to check out.

Investing any proceeds from such a sale is clearly a personal matter but if you are entirely risk averse, then State savings are an option. You need to be aware, however, that the current rate of inflation far exceeds the interest available on any “zero risk” savings options so your money is essentially losing value very year.

The only way around that is to assume some risk to try to generate annual returns after fees and charges of more than the current rate of inflation – 5 per cent. But that does involve leaving yourself open to the prospect of loss. War in Ukraine, an uncertain future for a long-term bull market in equities and concerns about the economic impact of disrupted supply chains and rising raw material and energy prices do not make such decisions any easier.

Depending on your age and circumstances, if you can invest with a reasonably long-time horizon, it should still deliver better returns than An Post but that is a matter for you to determine what you are comfortable with.

Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street, Dublin 2, or by email to dcoyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice