Navigating probate law is a daunting prospect when you face a bereavement. It’s made all the harder by the fact most people don’t have a good grasp of the ins and outs of executing wills and triggering the inheritance of an estate. And that’s understandable. It’s a frustratingly complex area of law.
One common problem is widespread misunderstanding of what it means to be named in a will. It’s not quite as simple as the people named get a specified portion of the estate as beneficiaries. People are also appointed to take on roles in administering the deceased’s wishes.
The most important and common is the executor, who takes on responsibility for managing the estate, paying debts, gathering assets, and ultimately representing the deceased through the probate process until assets are distributed to the beneficiaries. Another common role for people named in a will is a trustee. Trustees are responsible for managing any parts of the estate that have been put into trust.
There is further room for confusion in the fact that being named as executor does not automatically confer full control over the administration of the estate. The executor is still required to formally apply for a grant of probate.
A grant of probate is a legal document signed by a court which legally confirms an executor’s role. It gives a named executor legal authority over a deceased person’s assets, including funds held in bank accounts, property, possessions and immaterial assets like stocks, shares and other business holdings. This then allows the executor to carry out the deceased’s instructions as per the terms of the will.
No grant of probate, no access
Named executors can choose whether they want to take on the responsibility or not. But not applying for a grant of probate locks you out of the process of managing the estate. In situations where more than one executor is named, this can lead to conflict, should one party assume they have probate rights without applying for a grant.
This was the basis of a recent legal challenge adjudicated in the High Court. A man took the Financial Services and Pensions Ombudsman (FSPO) to court over its refusal to overrule his late mother’s bank in denying him access to information about her bank accounts.
The plaintiff and his sister were both named as executors in their mother’s will. However, only his sister applied for a grant of probate, and was therefore recognised legally as the administrator of the estate.
Having failed to take out a grant of probate, the brother was considered a “non-proving” executor, or effectively, an executor in name only. This carries none of the legal rights a ‘full’ executor has, including access to a deceased person’s accounts and other personal financial information.
The High Court ruled in the FSPO’s favour, in effect confirming the legal importance of named executors of a will applying for a grant of probate.
Cases like this underline the importance of anyone named in a will familiarising themselves with the law as it relates to their role – not just benefactors, but executors, too. The plaintiff in the above case lost the chance to challenge what he claimed was the unfair dispersal of assets by his sister.
Clarity on the rules around probate ensures smoother estate management, fewer legal hurdles, and significantly reduced stress at a difficult time. Given the complexities, it’s also an area where seeking appropriate professional advice is strongly advised. Contact our financial services team to find out more.
Probate specialists, solicitors, and financial advisors can provide invaluable guidance, ensuring compliance with Irish law and safeguarding the interests of all involved parties.
Considering professional assistance isn’t just about easing burdens—it’s a strategic decision. Expert advice often leads to quicker, more accurate estate administration, helping protect estate value and ensuring beneficiaries receive their entitlements promptly.
So, whether you’re an executor, administrator, or considering a non-proving role, clarity and confidence are key. With the right insights and support, probate doesn’t have to be intimidating—it can be a manageable, even empowering experience.
