Untangling a mess created by failure to put grandmother’s will through probate

My granny died in 1994 and left her house to my brother. She was our paternal grandmother and we lived with her. She put it in her will that my mother and father were to stay in the house for their life and then it would pass to my brother.

Unfortunately my brother passed away before my father. My father passed four months later and my mother, who lived in the house for 65 years, passed away six months afterwards.

Now my brother’s two daughters are claiming the house. The house never went to probate and is still in my granny’s name. Do I have any rights to the house I grew up in and looked after my parents until they both passed away?

Ms C.K.

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This is a mess that has been almost 30 years in the making.

There are a lot of gaps in the story, most particularly who was supposed to be executor of your grandmother’s will and what happened them? And, as a follow-up, did your brother have a will?

The one person who appears to have done everything by the book here was your grandmother. She took the time to write her will, with a clear view on how she wanted things done – the house to go to your brother but not until your parents had died. This scenario is called a right of residence where your parents had the right to reside in the property but no beneficial interest in it.

So what happened? If there is a will, and as you are familiar with its contents, it should be evident who was the named executor to your grandmother’s estate. That person had a legal duty to get her affairs in order – gathering her assets as well as details of any outstanding debt she left when she died and then applying for probate in order to pay off any debts and distribute her estate to those who were inheriting as well as notifying the Revenue Commissioners of any relevant details regarding that inheritance which might or might not see people subject to tax.

Before all that, they are responsible for organising the funeral although, in practice, that tends to take on a life of its own and be sorted by nearest relatives regardless of whom is executor. Of course, an executor could be held to account for an extravagant funeral that dissipated the assets of the estate to the loss of intended beneficiaries, but that’s an aside.

If they didn’t want to do the job, they had two choices – reserve their right or renounce their right. The first allows an executor to step back from the process although you can step back in, if required, at a later stage. Renouncing your right means what it says – you give up any right to act as executor and cannot turn the clock back later on that decision.

Once you have already started exercising the duties of executor, you cannot change your mind and step back – at least not without a court order. If the executor renounced the role and there was no other named executor, the court would appoint someone to act in the role. But you cannot simply ignore it.

It is unclear what happened here but, given that the property is still in your grandmother’s name, I am assuming whatever executor was named simply decided not to bother with the formal process and assumed that as the entire estate – mostly this house, I’m presuming – was being sorted within the one family, everything could be done on an informal basis.

For the record, that’s not the case. A will is a legal document, probate is a legal process; you cannot simply decide to adopt your own version of succession.

And it creates issues with taxation which will trickle down to today.

The right of residence your parents enjoyed in your grandmother’s house after her death has a value and that is seen as a benefit to them which is set against the inheritance tax threshold applying between your grandmother and them – in this case category A which, back in 1994, was the equivalent of €220,934 in what were then pre-euro times.

Your brother would also have had inheritance tax issues as the amount he could receive from his grandmother before tax was a more modest €29,458 in today’s money. His liability would have been both at the time of your grandmother’s death on the basis of the property’s value at the time and, had he lived, at the new market valuation when your mother (the last remaining parent with a right of residence) died.

Those tax liabilities are debts on their respective estates given that they have all since died, which makes things very messy.

Getting back to your central point of whether your brother’s children can simply claim the house, well no, they can’t. But that is unlikely to benefit you.

What is certain is that once probate is completed, the house moves into your brother’s ownership. On his death, what happens it is down to the terms of any will he made himself, if he did at all.

If he made no will, the house would be dealt with under rules of intestacy. We know he has these two daughters but you are silent on whether there is a spouse or partner. In intestacy, if there is both a spouse/partner and children, the spouse/partner gets two-thirds of the estate and the children share one-third. If there is no spouse or partner, the children divide the estate between them.

Either way, you do not get it unless his will gives it to you or provides you with a right of residence similar to what your grandmother put in place for your parents.

The fact that you lived there from childhood and took care of your parents when they were ill does not, in itself, grant you any rights to the house or a share in it.

Having said that, you don’t make it clear whether you still live there but, if you do, I wouldn’t be worrying for now. Your brother’s two daughters may ultimately own the house but until your grandmother’s will is put through probate and the situation regularised, they won’t be able to act on that. And given we are now talking about estates and tax liabilities going back three generations, that could take time.

I suspect that by the time the tax authorities have their say, this property will likely be sold off anyway with any eventual net proceeds going to whomever inherited under your brother’s will or to the spouse/partner and/or the daughters under intestacy.

Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street Dublin 2, or by email to dominic.coyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice