Question: I was speaking to a friend recently who told me she is a beneficiary on a will but she does not have a great relationship with the person who is the executor. All they have done is inform her she is a beneficiary but all lines of communication have ceased since then. It is now in the fourth year since the passing of her relative.

Can you offer any advice on how to deal with this?

Answer: If you are unhappy with the way the estate is progressing, it is probably advisable to get or retain your own solicitor who can take action if necessary to recover what is due to you. The law requires the executor to complete administration as soon as reasonably practicable having regard to the nature of the estate and all relevant circumstances.

Proceedings cannot be brought by a beneficiary against the executor for his/her failure to distribute an estate until a year after the death of the testator. This is known as the executor’s year.

If an executor fails to act, it is possible for the beneficiaries to issue a citation through the probate office leading to the executor having to accept or refuse a grant.

This cannot be done within 12 months of the death of the testator unless with the consent of the court. If the executor fails to respond or act, the court can allow someone else (eg beneficiary) to apply for letters of administration with will annexed.

Accept, reserve or renounce

An executor has a choice to accept, reserve or renounce the executorship. However, in the event of an executor accepting his/her appointment, once a grant of probate issues, he/she cannot subsequently turn back and seek to renounce that appointment without the consent of the court.

Once appointed an executor can only be removed in limited circumstances, such as where there is a clear conflict of interest in the administration of the estate.

The executor must administer the estate in accordance with the deceased’s wishes, as specified in the deceased’s last will.

The executor has the option to appoint the solicitor who drafted the will to act as solicitor for the estate, but if they prefer, they could take the original will to another solicitor. Alternatively, the executor could take out probate himself/herself without the assistance of a solicitor. In this situation, it is a matter of weighing up the workload versus the solicitor costs.

Assuming a solicitor is instructed to act in the administration of the estate generally, the solicitor who is dealing with the estate will contact you if you are a beneficiary under the will.

Usually you get a letter to tell you what the will provided for in relation to your inheritance. At this stage you are not entitled to a copy of the will unless the executor gives permission.

Once the will is lodged in the probate office, it will become a public document which anyone can examine. You can do a free search online to establish whether probate was taken out. This can be accessed at the following website: https://services.courts.ie/app/probate-register.

You can then order a copy of the will, probate and other documents with fees starting at €15.

It may be a case that it is not necessary to take out a grant of probate for example if assets were jointly held (eg by spouses). They usually pass automatically to the surviving owner and no probate is required.

If the deceased only had a small amount of money in a bank or credit union and no other significant assets, the institution may release funds without requiring probate.

Financial institutions set their own thresholds. The limits typically for banks is between €20,000-€50,000, while credit unions are often up to €23,000 and An Post around €15,000-€25,000. Also some credit union or life assurance accounts allow you to nominate a beneficiary directly, again avoiding probate.

Clearances obtained

A grant must always be obtained where the deceased owned land – except if it is owned jointly, where it will pass outside the will by survivorship.

Generally the grant of probate needs to issued and necessary clearances obtained before the assets can be distributed to beneficiaries.

These clearances would include tax clearance from Revenue, clearance from the Department of Social Protection where the deceased was in receipt of a non- contributory pension or clearance from the HSE where the deceased was in receipt of the Fair Deal Scheme.

I would suggest that you should write to the executor or the solicitor where there is one on record and ask them to confirm that the named executor has accepted the executorship. Failing that it may be necessary to issue a citation as discussed.

Disclaimer: The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information contained in this article, Aisling Meehan, Agricultural Solicitors and Tax Consultants does not accept responsibility for errors or omissions howsoever arising. E-mail aisling@agrisolicitors.ie