Problems in the Administration of the Estates of German Citizens with Assets in Ireland

I. Applicable Law

I.1. Generally, Irish private international law provides that the lex domicilii of the testator shall be the applicable law in respect of moveable property and the lex situs of the property shall apply in respect of immovable property

I.2. The question of what law, German or Irish, is applicable requires a determination of what is the testator’s domicile. The concept of a domicile is entirely different under Irish law to the concept of Wohnsitz or any similar German law concept. Detailed advice should be taken from an Irish lawyer. If the testator died while domiciled in Germany then the Irish law rule is that matters concerning the testator’s moveable property would be governed by German law. The transfer of immovable property would be governed by Irish law. If the testator’s domicile was in Ireland at the time of his death then the testator’s moveable and immovable property situated in Ireland would be governed by Irish law. The testator’s domicile at the date of death may generally have serious tax implications. The standard question which the Irish courts will investigate when deciding where the testator’s domicile was at the time of his death is whether the testator had determined to make his permanent home in such a place. If the testator’s domicile is found by the court to have been in Ireland then a further question to determine is whether the testator’s last will or testament (whether in the German language or in the English language) is valid and binding under Irish law or under German law. Appropriate legal opinions should be obtained.

II. Recognition of the Validity of Foreign Wills

II.1. The Succession Act 1965 and rules of court set out procedures on the adjudication of applications for the recognition and validity of foreign made wills. An application is made to the Probate Officer grounded upon the Affidavit of the Executor or Executive Attorney of the testator’s Estate and the Affidavit of a German lawyer. The Affidavit of the translator of such documents as are submitted which are not in English as well as the translations to English of such documents and generally an Administration Bond from an acknowledged insurance company is required. If the Probate Officer is satisfied with the documentation he may permit the Applicant Executor to apply to the Probate Office for a Grant of Probate or of Administration, as appropriate. The procedure to have a foreign will admitted by the Irish Probate Office as being a valid will can be quite lengthy and may involve delays. Once, however, the will has been admitted, then the procedure is essentially the same as the procedure which would apply in the case of an Irish testament.

II.2. Wills made in Germany or made outside of Ireland will be regarded by Irish law as valid provided they comply with the internal or domestic laws:
II.2.a. of the place where the will was made or
II.2.b. of the place of nationality of the testator or
II.2.c. of the place of domicile of the testator at the date of his will or at the date of his death or
II.2.d. of the place where the testator had his habitual residence or
II.2.e. (in the case of immovables) of the place where the immovables are situate.
In all other cases, for a will to be recognised as being a valid will in Ireland, the following must apply:
II.2.f. It must be in writing;
II.2.g. The Testator must be over eighteen years of age or married;
II.2.h. The testator must be of sound disposing mind;
II.2.h The testator must sign his or her name, make their mark or; acknowledge their signature in the presence of two witnesses present together;
II.2.j. This signature or mark must be found at the end of the will;
II.2.k. The two witnesses must sign their names in the testator’s presence

II.3 If a German national dies and if his will is in the German language and has been made in Germany or in some place outside of Ireland and it does not comply with the formalities which Irish law requires before a will is accepted as being valid, then the Administrator of the German national’s estate will normally work together with an Irish solicitor for the purposes of having the testator’s last will accepted by the Irish Probate Office as being valid. The application will normally be by way of Affidavit of the Administrator and it will be supported by an Affidavit from a German lawyer. The German will and perhaps the death certificate (Sterbeurkunde) and the Certificate of Inheritance from the German Court (Erbschein) will need to be translated into English and the translator will need to swear an Affidavit. The Executor will also be required to take out a bond from an insurance company recognised by the Probate Office, known as an Administration Bond. The procedure to have the foreign will admitted can take some time to process
A series of technical and relatively standard documents are required to be prepared by the Irish solicitor and submitted and, depending upon the circumstances, one of several different types of Grant may ultimately issue

II.4. One matter which may give rise to some difficulty is the identification of who the Executor of the testament will be. Where someone has been nominated by the testator to be the Executor then that person must make the application for the Grant to the Probate Office unless he has not accepted the appointment. The Executor who has successfully applied for a Grant has the obligation to ensure that the Estate is properly administered and may have liabilities to the State in respect of the loss of revenue or tax because of the Executor’s maladministration. He may have obligations to private individuals in respect of their legal right shares. An Executor will only be permitted to renounce his appointment or refuse to take up his position provided he has not already commenced the administration of the Estate or in any way “intermeddled” in the Estate. Where he does renounce his position, then, any beneficiary to the Estate may apply to the Probate Office for a Grant. In certain circumstances, the written consent of all other beneficiaries will be required before an application from someone other than the Executor who is named in the will is accepted.

III. Probate

III.1. Once the German will has been recognised as being valid, binding, and it has been admitted by the Irish Probate Office as being the equivalent to the testator’s last will, then the Irish solicitor who has been appointed by the person who is administering the German national’s property following his death will apply to the Probate Office for a Grant of Probate and the application will take the same form essentially as any application for a Grant. The solicitor will prepare a series of documents which will include the following:

III.1.a. The notice of application
III.1.b. The original will
III.1.c. An engrossment of the original will
III.1.d. The oath of the Executor/Administrator
III.1.e. The sworn Inland Revenue Affidavit
III.1.f. The Death Certificate

The following additional documents may also be required to be filed:

III.1.g. An Affidavit of due execution of the will

III.1.h. The Affidavit of plight and condition

III.1.i. The Affidavit of testamentary capacity

III.1.j. The Renunciation of the Executor

III.1.k. The Resolution of a Trust Corporation

III.1.l. A number of other, miscellaneous Affidavits

III.2 No legal title to the property belonging to the testator immediately before his death will pass under his will to the beneficiaries until such time as a Grant of Probate has been obtained. For example, shares owned by the testator in an Irish limited liability company will only transmit after the Grant has been taken up and the Executor has notified the company secretary and the board of the company have resolved upon the transmission. Until an Executor has applied for a Grant of Probate, the shares technically belong to the State.

III.3. The Executor and his solicitor will deal with all claims against the Estate and, if necessary, any issues arising in respect of such claims will be dealt with by determination of the High Court.

IV. Legal Entitlement of Surviving Spouse & Children

IV.1. The position of the surviving spouse and children is given certain protection by the Succession Act 1965

IV.2 The surviving spouse is entitled to one half of the testator’s gross estate notwithstanding provisions to the contrary provided the testator has not left any children. Where the testator does have children then the spouse is only entitled to one third of the testator’s estate. The Executor has an obligation to inform any spouse of this legal right share within a limited period. A child has also an entitlement to apply to the court for what is in effect an Order varying his deceased parent’s will provided he persuades the court that his deceased parent has failed in his moral obligation to adequately provide for the child’s well-being. A child therefore has no legal right share under Irish law but merely a right of appeal to the court.

IV.3. Legal right shares can be renounced in ante-nuptial or separation agreements between two parties to the marriage.

V. Liability for Debts

V.1. It is a standard provision in most wills that the testator leaves his property to his heirs after payment of all his debts. The Executor distributes the net estate. The Executor can be made liable personally for the testator’s debts and the debts of the estate in certain circumstances. The heirs of the testators are not liable for the debts of the testator or the estate of the testator.

VI. Inheritance Tax

VI.1. Issues of taxation are frequently the most important matters upon which the Executor of the estate will require legal advice. The testator will hopefully have taken legal advice in planning for his death and in drafting his will. Three types of taxes will usually arise:

VI.2. Capital Acquisition Tax:
This tax will concern the Executor of the estate in relation to distributions to beneficiaries of the will and it applies to all property which is acquired after June 1982 whether by inheritance by gift or by purchase. There is no such tax applicable in respect of gifts or inheritance between husband and wife. Other gifts of inheritance between family members and relatives have tax free thresholds. Other reliefs apply in case of agricultural land, transfer of businesses from father to son and certain heritage property

VI.3 Capital Gains Tax:
The gain in value of any property, moveable or immovable, between the date of its acquisition (whether inherited, gifted or purchased) and the date of its disposal is taxed on a sliding scale rate. Important allowances in respect of such taxation are available

Generally, the prudent Administrator of the Irish assets of a deceased German national will employ an Irish solicitor. The Administrator will rely upon the Irish solicitor to assist in resolving all issues arising upon the transfer of those assets pursuant to the testator’s last wishes. Should the Administrator not consult with an Irish solicitor, he is likely to make mistakes which may be costly. For further information please contact us.