When a homeowner dies, the fate of their property depends on several factors, including whether they left a valid will, the type of property ownership, and the presence of surviving family members. Understanding the legal processes and rights involved, such as probate, joint tenancy, and legal right shares, is crucial for the deceased’s family and beneficiaries. Here we explain the key aspects of Irish law in relation to property owned by a deceased person.

Right of Survivorship

In Ireland, “right of survivorship” refers to a legal principle where, upon the death of one joint tenant in a jointly owned property, their share automatically passes to the surviving joint tenant(s). This occurs without the need for probate or any legal intervention, ensuring the property remains with the living co-owners. This principle is commonly applied in joint tenancies, particularly among married couples, and contrasts with tenancies in common, where a deceased owner’s share can be bequeathed to heirs or beneficiaries as per their will.

What is a tenancy in common?

A tenancy in common is a form of property ownership where two or more people own a property together, each holding a specific, undivided share. Unlike joint tenancy, shares in a tenancy in common can be unequal and are independently transferable. Each tenant in common can sell, mortgage, or bequeath their share without the consent of the other owners. Upon death, a tenant in common’s share does not automatically pass to the surviving co-owners but instead is distributed according to their will or the laws of intestacy if there is no will.

Who inherits the tenant in common’s share when they die?

When a tenant in common dies, their share is inherited by the beneficiaries named in the deceased’s will. If there is no will, the share is distributed according to the rules of intestacy, which typically means it goes to the deceased’s closest relatives as defined by law. This is also the case when a sole owner of a property passes away without a joint tenant named on the property registration.

What are the rules of intestacy?

These rules dictate how an estate is distributed when someone dies without a valid will. The distribution follows a specific order of priority:

• Spouse/Civil Partner and Children – If the deceased leaves a spouse/civil partner and children, the spouse/civil partner gets two-thirds of the estate, and the remaining one-third is divided equally among the children.
• Spouse/Civil Partner Only – If there are no children, the spouse/civil partner inherits the entire estate.
• Children Only – If there is no spouse/civil partner, the entire estate is divided equally among the children.
• Parents – If there are no spouse/civil partner or children, the estate goes to the parents equally, or entirely to the surviving parent.
• Siblings – If there are no parents, the estate is divided among the deceased’s siblings.
• Nieces and Nephews – If there are no siblings, the estate goes to nieces and nephews.
• Other Relatives – If none of the above relatives are alive, the estate is distributed to more distant relatives based on a predetermined hierarchy.
• State – If no relatives can be found, the estate ultimately goes to the State.

When is a Grant of Probate required?

When someone dies, their assets are frozen. The “Grant of Probate” unlocks these assets. Issued by the High Court, this document is necessary for the estate’s solicitor to act. The document is necessary to:

• Authorise the executor named in the will to manage and distribute the deceased’s estate according to the will’s instructions.
• Allow access to the deceased’s bank accounts, property, investments, and other assets.
• Transfer ownership of property or other significant assets that were solely in the deceased’s name.
• Settle any debts and taxes owed by the estate.

Without a Grant of Probate, the executor cannot legally handle the deceased’s assets.

When are Letters of Administration required?

Letters of Administration are required when a deceased person dies intestate (without a valid will), or if there is a will, but no executor is named or the named executor is unable or unwilling to act. Without Letters of Administration, the administrator cannot legally handle the deceased’s assets.

What is a “legal right share” for a spouse?

The “legal right share” for a spouse refers to the portion of a deceased person’s estate that the surviving spouse is entitled to, regardless of the contents of the will. If the deceased left children, the spouse is entitled to one-third of the estate. If there are no children, the spouse is entitled to one-half of the estate. This legal right share takes precedence over any other bequests in the will, ensuring that the spouse receives a guaranteed portion of the estate.

Are children always entitled to a share?

No, in Ireland, children are not always entitled to a share of a deceased parent’s estate. Unlike the legal right share guaranteed to a surviving spouse, children do not have an automatic right to inherit if they are explicitly excluded from the will. However, children can apply to the court under Section 117 of the Succession Act 1965 if they believe the deceased parent has not made adequate provision for them. The court may then decide to make provision for the child from the estate, based on the circumstances.

Can an owner make a transfer of assets before death to avoid legal right share obligations?

Owners can transfer assets before death in a process called “lifetime gifting”. However, such transfers must be genuine and not done with the primary intent to defeat the rights of spouses or other dependents. Courts can scrutinise these transfers, especially if they seem to be an attempt to avoid the legal right share provisions. If deemed to be fraudulent or intended to deprive rightful heirs, the courts may set aside such transfers to ensure fair distribution according to the Succession Act 1965.

Looking for looking assistance regarding a deceased person’s property?

If a member of your family has passed away and you have concerns about what will happen to their assets such as their house, feel free to get in touch with the team here at McCarthy + Co Solicitors LLP. With extensive experience in conveyancing, family law, wills & probate, our team are best placed to offer you the legal guidance specific to your situation.