Estates of the nation

Mayo-based solicitor Catherine Bourke, chair of the very busy Law Society Probate, Administration and Trusts Committee, speaks to the Gazette about the work of the committee

The Probate, Administration and Trusts Committee has many tasks, but is particularly focused on:

• Enduring powers of attorney (EPAs) under the new ‘digital first’ regime,
• Tax clearance in estate cases and the requirement for tax advisor identity numbers (TAIN), and
• Probate Office delays.

Committee members work closely with colleagues on the Mental Health (Capacity) Task Force and on the Taxation Committee to come up with an agreed approach on estate work.

Practitioner queries

The most important part of committee work is dealing with queries from practitioners, which run to four or five every month, Catherine says, and will generally be on the “trickier” end of the probate spectrum. Queries can range from issues with wills and EPAs, to dealing with financial institutions, the Probate Office, or the Department of Social Protection.

“We always want to hear about practitioner problems,” she says, “because there is always more to be done on their behalf. When a colleague writes in with a query, we put our heads together to help.

“An important part of our agenda is to try to make the process of the administration of estates smoother for colleagues, and that means lobbying the various stakeholders involved in the probate process. I’m a big believer that it’s always easier to meet in person when dealing with State agencies.”

The committee also often makes submissions on draft legislation.

Continuous engagement

The committee engages continuously with the Probate Office, has welcomed the user-friendly information on the Courts Service website, and is also enthusiastic about the introduction of e-probate.

This will lead to a speedier application process for the benefit of clients, the committee believes, since delays, despite reductions from 18 to 14 weeks, are causing anxiety and hardship, particularly where a sale of property requires a grant of representation.

Catherine and the committee secretary, Padraic Courtney, attended the recent ‘Housing for All’ sessions in the Department of the Taoiseach and recommended changes, among others, to the credit union legislation to remove unnecessary probate applications from the system.
“We gave a presentation to the working group and we looked for the Seat Office to be reopened and for staffing levels to be increased,” says Catherine.

“We asked for flexibility on probate queries and an expedited scheme to be introduced where properties are being sold and contracts are already in existence ‘subject to probate’.”

The committee also recently met representatives from the Irish League of Credit Unions.

“We are lobbying for the legislation to be amended to allow for the small-accounts procedure to apply to the amount left over after nomination. At the moment, credit unions cannot release funds after death to pay a funeral bill in the same way that a bank or building society can.

“We believe that this should be changed, as it will ultimately benefit the public, who sometimes are required to apply for probates for small sums of money.”

Probate Office

The committee has an ongoing dialogue with the Probate Office to discuss ways to streamline the probate process together. The Probate Office has highlighted common errors on the applications returned to practitioners. “Our job is to keep the conversation going with the Probate Office,” she says.

Queries are now dealt with by email, which is speedier and, while delays are still significant, they have reduced slightly.

The committee has also asked to be invited to test and give feedback on e-probate software, as they were when the Revenue introduced the SA2.

“The rollout of the Revenue SA2 statement of affairs form was very smooth,” Catherine says.

Not all queries raised by the Probate Office relate to errors. For example, in cases where dementia is a cause of death, the Probate Office may require the deceased’s doctor to confirm that the deceased had mental capacity at the time they made their will, and an affidavit will be required.

Similarly, if the will is damaged or if the testator’s signature is weak, an affidavit of attesting witness may be necessary.

The situation is complicated further with contentious estates, where there may a section 117 claim by a child of the deceased against an estate.

“We may be dealing with a bereaved person who can’t grieve until probate delays are resolved, and a house can’t be sold. They may be waiting for money they are relying upon,” Catherine notes.

If all a couple’s assets are held in joint names, in most cases there will be no need to apply for probate after the first death, she points out. “It certainly makes things easier for spouses if assets are in joint names.”

A couple’s affairs can thus be structured in such a way that there is only the cost of one probate after they die.

State benefits

The committee recently met the Department of Social Protection (DSP) to provide clarity and an agreed approach in cases where the deceased was in receipt of social welfare assistance. While this does not arise in all estates, it causes significant concern when it does, Catherine Bourke points out.

Personal representatives are obliged under section 339 of the Social Welfare (Consolidation) Act 2005 to provide a schedule of assets of the deceased to the DSP where the deceased was in receipt of social welfare assistance.

“This can be a lengthy, complicated, and difficult process, so we have opened the channels of communication with the DSP for that reason,” Catherine says.

“The reason we met them was to try and firstly provide clarity as to how these cases are approached by the DSP, to gain an understanding. It was a very helpful exercise, because they have agreed to provide us with flow charts and information on how the repayments are calculated, which we will share with practitioners.”

For example, those in receipt of a non-contributory State pension will have made a statement of means at the point of application for assistance. When they die, if their capital exceeds a certain threshold, a refund may be due to the DSP.

Accumulated savings of pensions can also attract such refunds. If an estate is notified of a claim, distribution of the estate should not be made until the claim has been dealt with and clearance has been given by the DSP. Appealing these cases is slow and complex.

Catherine believes that many clients save for their care or for their funeral or for their family, and don’t live extravagantly. Many of them are not aware that such claims may be made against their estates after they die.

Valuable expertise

Catherine points to the 20 “very valuable” committee members who have wide-ranging expertise on taxation and probate, and the crossover between those spheres. “I’m in awe of the people on the committee and the depth of their knowledge,” she says.

“We are also very lucky to have Padraic Courtney as the secretary of the committee. He lectures in probate and has also co-written and edited the Law Society manual on wills, probates and estates. It’s great to have such a wealth of experience, and the geographic spread on the committee is so important as well.”

The committee meets mostly online since the pandemic and tries to meet in person at least once a year. Catherine herself has long service on the committee, halted temporarily by a five-year stint working as a lawyer specialising in estates in England.

Essential resources

The essential resources for committee work include the updated Probate Office website, Law Society eZines, and the Law Society probate manual. “No one should do probate without it,” Catherine said.

Probate has become increasingly complicated, as it now requires clearance from Revenue for income tax, inheritance tax, and capital gains tax, where applicable.

“It’s quite a tricky area,” Catherine says, with ever-increasing levels of administration.

“We are obliged to get tax clearance in all estates. That system is becoming quite difficult. Even where very little income is involved, the requirements are quite stringent.”

One of the aims of the committee is to try to work with the Revenue Commissioners to make the process of applying for tax clearance for estates as simple as possible for practitioners.

“The work involved in the administration of estates is increasing exponentially,” says Catherine.

Shellshocked

Clients who initially seek probate may often be shellshocked after a death.

“The first consultation is often difficult. The solicitor must be careful to take a delicate approach, as they guide and reassure the client. This is not an everyday occurrence for a client, and they mustn’t feel that they are on a conveyer belt,” Catherine stresses.

Dealing with an estate is a huge undertaking, with lots of administration and possibly many beneficiaries. The solicitor must manage expectations.

“It’s very important to explain the process to clients,” says Catherine. “Very often we assume that clients understand what we’re doing, the work involved, and the time it takes – and they don’t.”

In the past, the committee has written brochures for the public to explain the process of the administration of estates. With a digitisation project underway, processes for probate should become simpler, Catherine notes.

“We also look forward to a future when e-probate exists and the Government probate fee can be paid electronically. We believe that this will make the process much simpler for practitioners and for the public,” she concludes.

The expert group on conveyancing and probate has recently announced a goal of an eight-week probate turnaround time. The committee welcomes this announcement and looks forward to implementation of the government recommendations in this area.

For more information on the work of the Law Society’s committees, see lawsociety.ie/committees.

Mary Hallissey is a journalist with the Law Society Gazette.