Q&A: Dominic Coyle

In my mother's will she requested that her estate be divided equally among her children. The will specified two bank accounts in which her assets were held. She also had a joint account with one of my sisters in the post office.

Her intention was that this was to be divided equally and my sister, the joint account holder, understands this and is in agreement that this should be done. The issue is that my mother did not mention this account in her will, in error, and in order to close this account my sister has to complete a Form CA4, enclosing a copy of the will.

Can we complete the sections relating to beneficiaries in this form, as this post office account does not feature in her will?

If my sister closes this account as the joint holder can she then distribute the balance between the siblings?

My sister has no issue with the amount being divided among us, so there is no disagreement on the matter. We would just like to know the best way to proceed. Ms MD, email

As usual with the law in Ireland, there are nearly as many opinions as there are lawyers. I have still not tied down a definitive direction from any of them.

However, it seems clear to me that everything boils down to the nature of the joint account at An Post. Joint accounts can be held in two ways. The key thing is whether the signatories are "joint tenants" or "tenants in common".

In the former, it is deemed that the money paid into the account comes from both parties equally and that they both have equal access to the account for purposes of withdrawal/management etc. In such cases, the money passes under survivorship to the surviving account-holder outside the estate.

Tenants in common

Accounts where the signatories are tenants in common are more usual in circumstances where the assets in the account belong to one of the parties and the other is named merely for convenience in managing the account. In these cases, upon death, the assets of the account are deemed to be part of the estate.

Complicating matters is a 1995 Supreme Court judgment Lynch V Burke, where the court ruled that, even if all the money in the account belonged to one account-holder and that they controlled the account during their lifetime, the money could still pass to the other account-holder on death under survivorship (without forming part of the estate) if it was the intention of the controlling account-holder that the survivor receive the money when they died.

Following Lynch v Burke, it seems to me the assets of joint accounts pass to the survivor outside the estate unless there is a cause to challenge such a determination.

So what does all this mean for your family? My understanding is: ( a) the will stipulated all assets be divided equally; (b) the will stipulated certain assets but did not stipulate this account; (c) these three accounts are the sole assets; (d) your sister is the named joint account- holder but understands and accepts fully the broader intent of a general division of all assets under the will.

As it was not mentioned in the will and in light of Lynch v Burke, it could certainly be argued that the money in the An Post account is now the property of your sister and not part of the estate. That would appear to be the default position. Ironically, of course, this runs counter to the understood intent of the will and the understanding of the joint account-holding sister.

If the money does pass to her outside the estate and she then divides it between herself and her four siblings, the amount each would receive would count against the lifetime limit of €30,150 that a person can receive from a sibling or other linear relation (ie grandparents). In some cases, previous inheritance and/or gifts mean this latest disbursement could push them over that limit.

It seems to me that the most sensible approach is that your sister indicates to the executor that the account was held as tenants in common (and on CA4 is indicated as passing under “Will” at question 1/vii).

In that case, it then becomes part of the estate and is allocated along with the other assets to each of the five children.

What’s the practical difference?

It is more tax efficient. Each child can receive up to €225,000 in aggregate from both parents. The amount in this account – effectively the largest single element of your mother’s estate – will still keep each of you well below that limit if divided between you as long as you did not already receive a significant inheritance on the earlier death of your father or in gifts from either parent.

Tax-efficient

It also means you can “keep” the €30,150 category B threshold governing gifts and inheritances from linear relations available for use down the line, so it is more tax efficient. As it forms part of the estate and requires the form CA4, it may take a little longer to access than if your sister simply withdraws the money under survivorship and splits it among you, but, in tax terms, it is worth waiting that little while if necessary.

Send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara St, D2, or email dcoyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice.