My aunt never told us that Gran passed away with no will

Q&A: Dominic Coyle answers your personal finance questions

The costs of any solicitor will come from the estate before any inheritance is paid.

The costs of any solicitor will come from the estate before any inheritance is paid.

 

My grandmother passed away approximately 18 months ago, leaving behind eight adult children. She owned her house outright and had recently sold a house with land that belonged to my great-grandmother.

The youngest of the children was living with my grandmother, along with her adult daughter. All the siblings presumed that the house and any money must have been left to her as she continued to live in the property and made no mention of any inheritance to the other siblings.

However, my Mum, who now lives in England, received an email from her sister asking for her PPS so that she, the sister, can sign the house over to herself. My Mum asked why she needed to do this if the house had been left to her in the will and she said the house was not left to her as there was no will. Therefore she needed everyone to sign over any claim to the house as it wasn’t fair that herself and her daughter should be made homeless.

This leaves all the siblings in a very difficult position as most of them do not have much money and are working into their retirement. I don’t know what the correct course of action is here. My Mum has tried to contact probate Ireland but I believe if there was no will, there would be no probate. My Mum would really like to draw a line under all this but, being the eldest, is under pressure to resolve this.

There is no point my Mum wasting money she does not have on solicitors fees if she is not entitled to any claim

Ms K.O’C., email

Family differences are always the most complex. No-one wants to say or do something they might regret but, at the same time, there is no sense in leaving unsaid things that need to be sorted. They only fester and, over time, can prove toxic to family relations.

In this case, I fully understand your mother’s wish to draw a line under this but, at the same time, it is clearly not right or fair for one child out of eight to be seen effectively to inherit everything in the absence of any express statement from her mother, your grandmother, that this was her intent.

First things, first: neither your mother nor any of the other siblings should sign any document, legal or otherwise, proffered by your youngest aunt who is still living in the house. And no details that could facilitate any such transfer should be provided.

It’s clear from your letter that the family is not in any way looking to punish this younger sibling or have her thrown out of the house, which is commendable.

The position here seems very clear but just because your aunt says there is no will does not automatically mean it is so.

Your grandmother likely had cause to use a solicitor at some point – probably in the fairly recent sale of her own mother’s house. Most of us tend to use only one solicitor for all our affairs. It would be worth touching base with that solicitor to confirm that there is no will of which they are aware.

If indeed there is no will, the rules of intestacy kick in. And these are very clear. They have legal standing and are not prone to fudging. In your grandmother’s case, where there is no spouse or civil partner and there are children, the children inherit equally – ie the estate is equally divided between them.

So each of your mum and all her sisters and brothers owns one-eighth of the house and one–eighth of any other assets, including cash.

Set aside

And this is not something that can simply be set aside or ignored – even if all the siblings chose to. Quite apart from anything else, as far as Irish tax authorities are concerned, if no proceeds of the estate have been passed on to each of the people entitled to receive them, the Revenue Commissioners will consider that the 7/8ths of the value of your grandmother’s house and any other assets (including cash outstanding from the sale of the other home) have been gifted to this youngest sibling.

As you can only receive a maximum of €32,500 from siblings (along with grandparents, aunts and uncles) over your whole life, it is certain that this youngest sibling will have a tax bill – potentially a significant one.

But that is academic. She may currently have the house and any cash, but she is entitled only to one-eighth of it and your mother and her brothers and sisters are entitled to their share.

So what to do now? Someone needs to apply to be appointed administrator to the estate to arrange your grandmother’s affairs – making sure all her assets at the time of death are accounted for and that any debt she may have left behind is paid. This is done through the probate office, as your mother suspects.

So who gets to be appointed administrator? In the absence of a spouse or civil partner, children rank next in hierarchy in applying to be an administrator for an estate where someone dies intestate. There’s nothing to say which child, and, in the circumstances, I think it would be important for the other family members that the youngest child who is already in possession, but not entitled, should not be the person to apply.

Any administrator must operate within a framework of rules and law, but there is clearly a conflict of interest in her case. I think it would make more sense for one of the other seven to seek appointment.

Apply

There is, of course, nothing to stop your mother’s youngest sister from applying so my advice to you is that you need to get moving to have your mum or one of her siblings appointed administrator. It might certainly be easier for someone based back here to do it, which is something to consider.

And this brings us back to your mother’s original concern: should she commit to the expense of hiring a solicitor to gets things organised? I strongly advise that a solicitor is engaged by whichever sibling seeks appointment as administrator.

The costs of any solicitor will come from the estate before any inheritance is paid. As your grandmother’s affairs sound fairly straightforward even if it might take some time to organise all the paperwork for accounts, house sales etc, the cost should not be onerous. You should try, at least, to agree terms on cost before appointing a solicitor.

Where it could get messy, obviously, is in dealing with your youngest aunt. She has already said nothing for 18 months where she presumably has had access to any of your grandmother’s papers, is now trying to “regularise” her position, and is already playing the victim.

Another advantage of appointing a solicitor is that they are one step removed from the family and will operate in a dispassionate manner. That minimises the prospect of personal clashes.

And, of course, they would be familiar with the process of petitioning the probate court for a letter of administration and the process thereafter. Administration also involves filing a Revenue affidavit – a Form CA24. This is 20 pages long. It is not rocket science but it is a tax document so it needs to be filled out carefully and precisely. A lawyer would be well used to them.

Once the estate is sorted, there is nothing to stop the eight owners of the house allowing the youngest to live there at a fair rent, as you have suggested in your letter, or to buy out the others out at a fair price…but first, the estate must be put in order. There’s no ducking that and the sort of informal, back-handed and after the event transfers your aunt is seeking to execute are outside the law.

As things stand, your mother and all her siblings are left in a very difficult position. You note that most of them do not have much money and are working into their retirement. This youngest sibling is still very much of working age, as is her daughter.

If your grandmother had wanted her to inherit exclusively, she would have made a will to that effect – or, at the very least, expressly stated it to the rest of her children. That would still have been messy in legal terms but at least the family would have known that it was her wish.

She didn’t and therefore it is not right that this youngest sibling she would inherit.

Should it arise in discussions with your aunt, there is provision in Irish law for a child to inherit a property free of tax when they have lived there to care for a relative for three years before that relative dies and for six years thereafter – and they own no other property or share in any other property.

However, this applies only when granted in a will – ie your grandmother would have had to draw up a will saying she wanted this youngest child to inherit the family home. That didn’t happen here so she cannot claim the house under this “dwelling house exemption”.

In any case, it would not apply to any other assets, such as cash from the sale of the other property.

The bottom line is that hiring a solicitor is not a waste of money. Your mother and her siblings are entitled to inherit. And with this property and the proceeds from the sale of the other one, there is a reasonably substantial estate – especially, as you say, when some of them are reasonably hard up financially.

They should act and they should do so sooner rather than later.

Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street, Dublin 2, or email dcoyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice. No personal correspondence will be entered into.

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