The ULTIMATE GUIDE To Enduring Power Of Attorney In Ireland (2023)

The ULTIMATE GUIDE To Enduring Power Of Attorney In Ireland (2023)

by | Sep 25, 2023 | Enduring Power of Attorney

Introduction

Life is an unpredictable journey with twists and turns that can challenge our emotional, financial, and mental well-being. While you may not have a crystal ball to see into the future, you can certainly prepare for unforeseen circumstances. One crucial aspect of this preparation, especially for adults at any stage of life, is setting up an Enduring Power of Attorney.

The following guide aims to demystify the subject of Enduring Power of Attorney in Ireland, explaining its importance, legal provisions, and how to go about it (without any stress). Ready to safeguard your future?

What Is Enduring Power Of Attorney?

The purpose of an Enduring Power of Attorney (EPA), is to appoint a person (an Attorney), to manage your personal and/or financial affairs, in the event you become mentally incapacitated.

 

An EPA isn’t just a piece of paper; it’s a lifeline. It is a legal arrangement that ensures someone you trust implicitly can make crucial decisions on your behalf should you no longer have the mental capacity to do so yourself.

 

In simple terms, it’s a way to prepare for the worst, while hoping for the best.

Enduring Power Of Attorney vs. General Power of Attorney

Although this article focuses on the Enduring Power Of Attorney, understanding the different types of Powers of Attorney can help you decide which one suits your specific needs.

 

Powers of Attorney can either be specific, restricting the attorney to a narrow scope of tasks, or general, allowing them to do nearly everything you could do.

General Power of Attorney

A General Power of Attorney empowers someone to manage your property and/or affairs for a limited period. In other words, it’s a short-term delegation of authority.

 

Common use cases include going on an extended holiday or living abroad temporarily. Known also as an Ordinary Power of Attorney, this form is fully operational as soon as you sign it and doesn’t require registration.

Enduring Power of Attorney

If you need someone to act on your behalf because you’ve become mentally incapacitated—due to illness, an accident, or conditions like dementia—an Enduring Power of Attorney is the appropriate choice.

 

Unlike a General Power of Attorney, an EPA must be registered and comes into effect when you are no longer capable of managing your own affairs.

 

By understanding these distinctions, you can make a more informed choice tailored to your unique circumstances.

Without an EPA, the process becomes more complicated and stressful... | Kevin O'Higgins Solicitors

When Is Enduring Power Of Attorney Necessary?

Think of an Enduring Power of Attorney as a safety net for adults of all ages. It’s not merely an “end-of-life” plan but a practical tool for life’s unexpected challenges.

 

There are many ways in which someone can lose their decision-making capacity and an EPA might be necessary. In Ireland, a high number of instances occur due to dementia, Alzheimer and strokes. According to the Alzheimer Society of Ireland, “it is estimated that there are 55,000 people living with dementia” in Ireland, with figures projected to rise above 150,000 by 2045.

 

Whether you’re entering retirement, running a business, or have a chronic illness, an EPA assures that your affairs are in competent hands.

What Safeguards Prevent Abuse Of Power?

An Enduring Power of Attorney is an incredibly potent legal document, granting extensive decision-making authority to your chosen attorney(s).

 

Therefore, it’s paramount to only appoint individuals you deeply trust. But trust isn’t the only line of defence; the system includes several built-in safeguards to minimize the risk of abuse.

 

Here are the key protective measures:

 

  • Registration Requirement: Attorneys cannot exercise any authority unless the EPA is registered. During the registration process, specific parties have the legal right to object, adding a layer of scrutiny.

  • Notification of Intent to Register: Before registration can proceed, those designated to act as your attorney must notify at least two individuals specified in the EPA document. This gives these individuals the opportunity to raise objections if they have concerns.

  • Medical Certification: An EPA is only actionable with at least one doctor’s certificate confirming that you have become incapable of managing your own affairs. Moreover, when the EPA was initially drafted, a doctor would have also issued a certificate asserting that you, the donor, fully understood the implications of what you were doing, and were neither under undue influence nor defrauded.

  • Donor Restrictions: As a donor, you have the option to specify conditions, restrictions, or limitations on what your attorney(s) can and cannot do on your behalf.

 

By understanding and leveraging these safeguards, you can further secure your interests and well-being.

Can I Revoke An Enduring Power Of Attorney?

After your Enduring Power of Attorney has been registered, you have the option to either revoke or modify it by notifying the Decision Support Services (DSS). However, this is only possible if the DSS has not already accepted a notification indicating your loss of mental capacity.

 

It’s worth noting that EPAs created prior to April 26, 2023, are not required to be registered. Should you wish to cancel your EPA, you can either physically destroy the document or supersede it with a new one.

 

To formally revoke or amend your EPA, your application must include the following:

 

  • A declaration confirming your understanding of the consequences of your actions.

  • A statement from a solicitor or barrister, corroborating that you fully grasp the implications of your request and are not acting under external pressure.

  • If you’re making changes, a confirmation statement from the attorney acknowledging the amendments.

 

For EPAs generated before April 26, 2023, registration with the DSS is not obligatory, and revocation can only occur through the High Court.

Do I Need An Enduring Power Of Attorney?

Yes, an Enduring Power of Attorney isn’t just a document for potential worst-case scenarios; it’s a strategic component of a well-rounded life plan.

 

It gives you and your loved ones the peace of mind that you have a plan in place.

What If I Don't Have An Enduring Power Of Attorney?

Without an EPA, the process of assigning someone to make decisions for you becomes more complicated and stressful.

 

If you do not have an EPA in place and lose mental capacity, your family will have to apply to the Court of Protection for a wardship order.

 

Applications for wardship are a court-based process. They can be both lengthy and expensive. It is much easier for everyone concerned if you have an EPA in place before any unfortunate situation arises.

How Do You Register An Enduring Power Of Attorney?

Registration isn’t just filling out a form and calling it a day; it’s a multi-step, legally intricate process that requires meticulous attention to detail.

 

The Decision Support Services (DSS) provides an online portal where individuals can initiate the process of setting up an EPA. While the online process offers some convenience, there are alternative methods available for those who find it challenging.

 

For example, you can authorise a legal representative to interact with the DSS on your behalf. This enables you to proceed through a paper-based manual process. Once you complete the EPA in paper form, it can be submitted to the DSS for registration.

 

Please note that you’ll need to verify your identity with the DSS as part of this process.

When Do You Register An Enduring Power Of Attorney?

Registration is a critical step that is triggered when you are losing or have lost mental capacity. It’s not just a procedural formality; it’s a legally mandated step to ensure that your attorney is properly empowered to act on your behalf.

The key factor is the level of trust and understanding between you and the individual or entity | Kevin O'Higgins Solicitors

Who Should Be Your Enduring Power Of Attorney?

The selection of your Enduring Power of Attorney is not a decision to take lightly. This person will hold significant influence over your life, especially during vulnerable moments.

 

Consider their reliability, understanding of your wishes, and their ability to make tough decisions under pressure.

Who Cannot Be Your Enduring Power Of Attorney?

Just as there are qualities to seek in an EPA, there are also legal restrictions on who can serve in this role. For example:

 

  • Minors: Individuals under the age of 18 are ineligible.

  • Bankruptcy Filers: Persons who are bankrupt cannot serve as your attorney.

  • Fraud Convicts: If someone has been convicted of fraud, they are disqualified.

  • Company Act Disqualifications: Individuals disqualified under the Companies Act are not eligible.

  • Nursing Home Owners: If you reside in a nursing home, the owner—be it an individual or a trust corporation—cannot be your Enduring Power of Attorney.

 

By knowing who can and cannot be your attorney, you can make a more informed, legally sound decision.

Does Your Enduring Power Of Attorney Have To Be Family?

There’s a common misconception that your EPA must be a close family member. While many people do opt for relatives—owing to established trust and familiarity—it’s not a legal requirement.

 

Friends, business associates, or professional fiduciary services can also serve as your EPA. The key factor is the level of trust and understanding between you and the individual or entity.

Nominating A 3rd Party In Your Enduring Power Of Attorney

In complex situations, or to add an additional layer of security, a third-party nomination can serve as a ‘check’ on your primary EPA. This entity can be given specific oversight duties, adding another level of due diligence.

What Are Enduring Power Of Attorney Notice Parties?

In addition to informing your chosen Attorneys about the responsibilities you’re entrusting to them, you’re also required to notify two other individuals. They are known as your ‘Notice Parties.’

 

The criteria for selecting your Notice Parties are as follows:

 

  • If you are married or in a civil partnership and are cohabiting with your spouse or civil partner who is not serving as your Attorney, they must be one of the Notice Parties.

  • Your child can also serve as a Notice Party.

  • If you neither have a spouse, a civil partner, nor a child, you are obligated to select two relatives to act as your Notice Parties.

 

It’s important to note that these Notice Parties will be informed once more if there comes a time when the EPA needs to be activated.

The 2015 Act introduces a supported decision-making framework in Ireland | Kevin O'Higgins Solicitors

What Irish Laws Govern Enduring Power Of Attorney?

Laws are not static; they evolve, and understanding the current legislative landscape is crucial. Several key pieces of legislation govern EPAs in Ireland.

Assisted Decision-Making (Capacity) Act 2015

Since 26 April 2023, the Assisted Decision-Making (Capacity) Act 2015 has been fully operational concerning Enduring Powers of Attorney. The 2015 Act overhauls the previous framework, introducing a new, supported decision-making framework in Ireland.

 

In short, it allows people to make legal agreements on how they can be supported to make decisions about their personal welfare, property and financial affairs. Applications for adults to become a Ward of Court can no longer be made.

Decision Support Services (DSS)

A noteworthy change is the establishment of a new Government Agency—the Decision Support Services (DSS). This agency has assumed the responsibilities previously held by the Wards of Court in the realm of EPAs.

 

The DSS provides an online portal where individuals can initiate the process of setting up an EPA. While the online process offers convenience, it may not be suitable for everyone due to its requirement for a certain level of IT competency.

 

If you find the online process challenging, there are alternative methods available. For instance, you can authorize a legal representative to interact with the DSS on your behalf. This enables you to proceed through a paper-based manual process.

 

Once you complete the EPA in paper form, it can be submitted to the DSS for registration. Please note that you’ll need to verify your identity with the DSS as part of this process.

Powers of Attorney Act 1996

The 1996 Powers of Attorney Act serves as the cornerstone legislation governing Powers of Attorney in Ireland.

 

This Act experienced a significant update with the enactment of the 2011 Civil Law (Miscellaneous Provisions) Act. This amending Act introduced a new provision stating that an Enduring Power of Attorney will be nullified if the donor decides to revoke it before losing mental capacity.

 

It’s also important to note that the 1996 Powers of Attorney Act lays down the essential criteria that must be fulfilled for an Enduring Power of Attorney to be legally valid. This sets the foundational guidelines you’ll need to meet when establishing your EPA.

The Role Of The High Court

It’s essential to understand that the High Court plays a supervisory role when it comes to Enduring Powers of Attorney. Once an EPA is registered, its cancellation can only be approved by the High Court. This body also has the authority to provide directives concerning the management and disposal of the Donor’s assets.

What Does "Losing Mental Capacity" Mean?

Mental capacity is a complex and nuanced subject. Having a mental illness or going through a period of being unwell does not necessarily mean you’ve lost your mental capacity to make decisions for yourself.

 

In the context of an EPA, losing mental capacity is formally determined by a healthcare provider, typically a general practitioner or doctor.

 

In Ireland, the criteria to establish loss of mental capacity include:

 

  • The ability to understand the information relevant to the decision in question

  • The capability to retain that information long enough to arrive at a decision

  • The aptitude to weigh that information during the decision-making process

  • The competence to communicate the decision clearly

 

If you are concerned about your ability or that of a loved one to make reasoned decisions, it is strongly recommended that you seek medical consultation. If the doctor diagnoses a loss of mental capacity, it may be time to consider establishing or activating an Enduring Power of Attorney.

When Should "Incapacity" Be Notified?

The moment incapacity is suspected or confirmed, it should be reported to activate the EPA. However, understand that ‘activation’ is not a simple switch; it is a process that involves legal verification and potential court involvement.

The Scope Of An Enduring Power Of Attorney's Power

Understanding the parameters of the EPA can be likened to knowing the rules of a game—you play better when you know the boundaries. Your Enduring Power of Attorney’s role is not a blanket authority but is governed by the specific powers you grant in the legal document.

What Is An Enduring Power Of Attorney Obligated To Do?

The scope of your Enduring Power of Attorney’s obligations depends on the level of decision-making authority you grant them. An EPA can extend to both your financial and personal life, so it’s critical to choose wisely.

Financial Decisions

Financial responsibilities generally encompass, but are not limited to:

 

  • Management of your bank accounts

  • Oversight of your savings accounts

  • Engagement in investment activities, including buying and selling

  • Payment of your ongoing bills

  • Real estate transactions, such as buying or selling property

Personal Decisions

On the personal front, responsibilities can include but are not restricted to:

 

  • Deciding where you should live

  • Determining whom you should live with

  • Managing social interactions, including who you should or should not see

  • Recommending or overseeing training or rehabilitation programs

  • Making decisions about your diet and dress

  • Granting or denying permission to inspect your personal papers

  • Handling matters related to housing, social welfare, and other benefits

 

It’s crucial to note that these duties need to align with your wishes and best interests, a key aspect to discuss with your attorney(s) when setting up your EPA.

Common Mistakes With Enduring Power Of Attorney

Even with the best of intentions, mistakes can happen. Here are some pitfalls to avoid:

 

  • Ambiguous Language: Lack of clarity can lead to disputes. Be as specific as possible.

  • Failure to Update: Life changes, and so should your EPA. Regular reviews are essential.

  • Not Discussing Duties: The appointed attorney should be aware of and comfortable with their roles and responsibilities.
Having an EPA can significantly ease the emotional and logistical burdens on your family | Kevin O'Higgins Solicitors

Who Monitors Enduring Power Of Attorneys?

The Decision Support Services (DSS) monitors the Enduring Power of Attorney.

How Do They Monitor An Enduring Power Of Attorneys?

If your attorney informs the DSS that you have lost your decision-making capacity, they must also submit a list of your assets. Each year, your attorney must submit a written report to the DSS setting out the costs, expenses and/or money paid. It’s crucial to maintain accounts and records of decisions.

 

If the DSS receive a complaint or wishes to check the activity of your attorney, they can send a visitor to speak with your attorney.

 

Here’s a quick breakdown of the various avenues that provide a safety net:

 

  • Court Oversight: Courts may require periodic reporting and can review any actions undertaken by the attorney.

  • Financial Audits: Depending on the scope of the EPA, external audits can be carried out to ensure financial propriety.

  • Third-Party Reports: Notice parties, social workers, or healthcare providers can serve as additional sets of eyes.

Frequently Asked Questions

As we’ve dived deep into the world of Enduring Power of Attorneys in Ireland, you likely have some questions. Here are some commonly asked queries and their answers:

What Is The Cost Of An Enduring Power Of Attorney?

In Ireland, the cost of an Enduring Power of Attorney can range from €500 to €1,000 in solicitor fees, with court registration costs added to the total. While costs can vary, it’s an investment in your peace of mind.

Can An Enduring Power Of Attorney Change A Will?

An Enduring Power of Attorney has no authority to change your will. Their jurisdiction ends with your life’s affairs and does not extend into posthumous matters.

Is An Enduring Power Of Attorney Valid After Death?

The Enduring Power of Attorney loses its validity the moment the donor passes away. From that point, the executor named in your will takes over.

Conclusion

Preparing for life’s uncertainties, especially as you approach your later years, is a topic many shy away from. However, the importance of this planning cannot be overstated. Having an Enduring Power of Attorney can significantly ease the emotional and logistical burdens on your family and loved ones should the unforeseeable occur.

If you find yourself with lingering questions or need expert assistance in setting up an Enduring Power of Attorney, we’re here to help. With years of specialised experience in elderly care law, Kevin O’Higgins Solicitors is equipped to guide you through this crucial life-planning phase. Contact us today for peace of mind for tomorrow.

The Ultimate Guide To Enduring Power Of Attorney In Ireland (2023) | Kevin O'Higgins Solicitors
Wills and their Effect on Loved Ones: Making your Will with your family in mind

Wills and their Effect on Loved Ones: Making your Will with your family in mind

by | Sep 19, 2022 | Making a Will

For many, the process of making a Will can seem like a daunting task, something that people may end up putting off for years. This is understandable as dealing with a Will is tantamount to recognising that you may not always be around to provide for your loved ones. This is a difficult but important conversation that you should have with yourself and, more crucially, your family. It is never too early to begin this conversation and set about getting your affairs in order so that your family are well looked after in your absence. It is vital to open this discussion up to your family so that you may gauge their expectations and needs for the future.

This is where the assistance of a legal professional is vital. They will be able to provide you with the relevant information and advice specific to your situation so that you can make informed decisions regarding your Will. It is important to remember that a Will does not have to be set in stone, it can be changed and adapted throughout your life as your circumstances change and shift with the times.

Beginning the conversation is the most difficult step but, once the process is in motion, it will soon become apparent that you cannot put a price on the peace of mind granted by having a solid plan in place. In this blog post, we’ll guide you through the process of making a Will and what to keep in mind when crafting a Will to suit your family’s needs.

Benefits of a Will

Recent research has shown that only 30% of people in Ireland have made a Will.  Consequently, a very large number of people pass away without any Will in place. This can cause all sorts of legal difficulties for loved ones who are left behind. When somebody dies without a Will, they are said to have died intestate. As a result, the laws of intestacy determine how the deceased person’s estate is divided and can often lead to assets being distributed in a way that the deceased person would not have wanted. In Ireland the laws of intestacy are dictated by the Succession Act of 1965. Under this act, if a person dies without having made a Will, their estate shall be distributed in the following way:

– If the deceased was married or in a civil partnership at the time of their death, their spouse or civil partner will inherit the entire estate.

– If the deceased was not married or in a civil partnership but had children, their children will inherit the estate in equal shares.

– If the deceased had no spouse, civil partner or children, their parents would inherit the estate.

– If the deceased had no surviving close relatives, their brothers and sisters (or their descendants) will inherit the estate.

– If the deceased had no surviving close relatives, other relatives would inherit the estate.

– If the deceased had no close or distant relatives, their estate would go to the State.

Your vision for your family’s future may not align with the lines of distribution laid out by the Succession Act. It is clear from these laws around intestacy that having a Will in place gives you a much greater say in how your assets will be distributed when you die.

Probate

Upon your passing, your estate must enter a process known as “probate”. This is a legal process, handled by The Probate Office, that must be carried out before your assets can be handed over to your loved ones. Your estate must enter probate regardless of whether or not you have a Will in place, however, the probate process is made far more complicated and time-consuming where no Will was ever made.

When there is a Will in place, an application for a grant of probate must be made to ratify the Will and have the wishes of a Will carried out. In this instance, the executor of the Will will be entrusted with the responsibility of distributing the deceased’s estate in line with the wishes laid out in the Will. When a deceased person has passed away without a Will, an application for a grant of administration must be made. An “administrator” (generally a next of kin of the deceased), is put forward and becomes responsible for administering the distribution of the estate in accordance with the laws of intestacy.

In an intestacy situation the probate process can be more complex and time-consuming for your loved-ones. For example, a bond will be required for a sum equal to twice the gross assets of the estate. In a Will situation this is not required which, again, underscores the importance of having a Will in place.

Seeking out appropriate legal advice from an experienced solicitor when wishing to settle your affairs is crucial. Your solicitor will work with you to compile all the necessary information and documentation to help the whole process run as smoothly as possible.

Your Children and Your Will

Perhaps the most vital thing to consider when making a Will is how your children will be affected. If you die without a Will, your children may be left in the care of somebody you would not have chosen. This could be a grandparent, an aunt or uncle, or in extreme circumstances, the State.

When you write a Will, you can appoint legal guardians for your children. These are the people who will take care of your children if something happens to you and their other parent. You can also use your Will to leave money or property to your children. This can be done directly or through trusts. If you have young children, it is especially important to have a Will in place so that provision can be made for their maintenance and educational needs up to 18 years of age and thereafter. Any part of an estate that is to be left to a child as inheritance can not be claimed by that child until they reach the age of 18 – Succession Act, 1965. However, many parents opt in their Will to stipulate that their child or children should not benefit from inheritance until they are older – perhaps 23 or 25 years old. 

Defining Your Family

Nowadays, the word ‘family’ is flexible and can hold a different meaning for a lot of people. You might have a traditional family set up with a spouse and children. Or you might be in a same-sex relationship or be in a civil partnership. You might also be single or divorced. You might have stepchildren, foster children, or children from previous relationships.

No matter what your family looks like, it is important to consider them when making your Will. This includes not just your immediate family but also any extended family members who you wish to include in your Will.

Keeping your family and loved ones in mind should be at the heart of every major life decision, especially when it comes to making your Will. Making a Will gives you the opportunity to ensure everybody who is important to you is considered and acknowledged upon your passing.

 

Here at Kevin O’Higgins Solicitors, we have decades of experience in succession and probate law and would be happy to work with you to create the perfect Will to suit your circumstances. If you would like to begin the process of writing a Will or have any further questions please contact us today. We’re more than happy to help.

Selling a house in Ireland: What you need to know

Selling a house in Ireland: What you need to know

by | Jul 26, 2022 | Property

If you’re looking to sell your house in Ireland, there are a few things you need to know. The process of selling a house in Ireland can be tricky, so it’s important that you understand what’s involved before diving in head first. Unfortunately, the process isn’t quite as simple as putting a “For Sale” sign up and waiting for the offers to pour in. There are many things that must first be considered, from setting the right price to finding the right buyer. In this blog post, we will outline the steps involved in selling a house in Ireland and give you some tips on how to make the process as smooth as possible. We will also provide some tips on how to find the right professionals to aid in the transaction, as well as share some information on buying and selling a house at the same time, so that you have a fuller understanding of the Irish real estate market!

Selling a house in Ireland

Auction vs Private Treaty Sale

There are two ways to sell a house – by private treaty or by auction. A sale by private treaty is the type of property sale most of us would be familiar with. This is where the seller puts their house on the market and, usually via an auctioneer or estate agent, invites offers for the property. Sales by auction are where a vendor will list their house for sale in a specific auction. The vendor will set a reserve price for the property – the minimum amount they would be willing to accept for the property. From here, buyers at the auction will be able to openly bid on the property, with the house being sold to the individual with the highest offer. In contrast to a private treaty sale, buyers at an auction are expected to sign contracts of purchase then and there on the day of the auction.

A professional auctioneer or other expert in the area can advise you on how to sell your particular house. The best method depends on a number of factors including the type of house, the state of the property market, and the area, so it is best to consult an expert in the area for the best option for you. It is essential that you notify your solicitor of your plans to sell the house so that he can prepare the title documents and the contract.

Finding a Solicitor

One of the first and most important steps in selling your property is finding the right solicitor to aid you in the transaction. There are a few things to look for when choosing a solicitor, such as:

– A solicitor who has experience in selling houses
– A solicitor who is based in the area where you’re selling your house
– A solicitor who has long-standing relationships with other solicitors and professionals in the area who are likely to also be involved in the transaction.

When it comes to selling your home, your solicitor will be responsible for a number of tasks, such as:

– Drafting and negotiating the contract for sale
– Being responsible for your title deeds. If you have a mortgage, this will mean requesting your title deeds from your lender 
– Organising the transfer of ownership
– Calculating and paying the stamp duty on your behalf
– Submitting the Capital Gains Tax return on your behalf (if applicable)

Selling a house in Ireland is a big decision and, as such, there are a lot of things to consider before taking the plunge. With the help of a solicitor, you can be sure that all of the necessary steps are taken care of and that the process runs smoothly. Read our previous blog, Finding the Right Property Solicitor for Your Situation, to find out more about how to choose the right solicitor for you.

Contract for Sale

As soon as the solicitor has received all the necessary documentation from you and the lender, the contract for sale will be drafted. The solicitor leaves the purchaser and purchase price blank when preparing contracts for an auction sale until after the auction is over and the buyer is known. Prior to the auction, prospective bidders will want to review the title documents. If the sale is by private treaty the contract will contain all names including the purchase price. For private treaty sales, the contract for sale is not drawn up until after an offer has been accepted.

Setting the Right Price

A crucial step in selling a house in Ireland is to set the right price. For a private treaty sale, this is the asking price – a price set by the vendor as an indicator of what they expect to receive for the purchase. In an auction, this is the reserve price.

Pricing your home too high will result in it sitting on the market for a long time without any offers, while pricing it too low will mean that you’ll lose money on the sale. It’s important to find a happy medium, and the best way to do this is to consult with a local real estate agent. They will have a good understanding of the local market and can help you to set a competitive price for your home.

Hiring a Real-Estate Agent

While you can opt to sell your house privately, the vast majority of sales are done with the help of a real estate agent. An experienced real estate agent will be able to take care of many of the more time-consuming aspects of selling your home. They will value your property, photograph your home to ensure it’s looking its best, advertise and market your house for you and take care of any viewings. They will also coordinate the completion of the sale with your solicitor to ensure there are no legal loose ends.

One important thing to note before working with an estate agent is to ensure that they are registered with the Property Services Regulatory Authority (PSRA). All estate agents in Ireland must be registered with the PRSA. You can check this by searching their name on the PSRA website.

The final step in selling a house in Ireland is to complete the sale. This involves signing a contract with the buyer and transferring ownership of the property. Once the sale is complete, you’ll be able to collect your money and move on to your next home!

Buying and selling at the same time

The juggling of both buying and selling a house can be quite challenging if you want them to happen simultaneously. If you intend on completing such a transaction, it is important to work with a solicitor who has experience in handling such matters. It is possible to sign a contract for the purchase of your new house contingent on the sale of your old house going through. It is not necessary for either of these to go through at exactly the same time as there are many things that can go wrong.

Up until recently, it was possible to obtain bridging finance from a lending institution to cover the time period between the purchase of your new house and the sale of your previous house. However, such lending options are no longer available in Ireland.

Handling a transaction of this nature can be quite complex and complicated but working with an experienced firm, such as Kevin O’Higgins Solicitors, will ensure the process is carried out as hassle-free as possible.

Taxes involved in Selling a House

If you’re selling a house in Ireland, it’s important to be aware of the various taxes and fees that you’ll need to pay. The most common of these is stamp duty, which is a tax that is payable on all property transactions. The amount of stamp duty you’ll need to pay will depend on the value of your home as per the final sale price.

If you sell a house that is not your primary residence, you must pay Capital Gains Tax (CGT) on this sale. Generally, capital gains taxes do not apply to properties that are your primary residence. The general amount for CGT is 33% the sale price, however, the amount you will have to pay to the Revenue Commissioners can vary and you should speak to your solicitor to be advised upon the exact amount owed. This amount will vary according to the value of the property.

Other costs involved in selling your home include your real estate agent’s fee and your solicitor fees.

Sale Agreed v Sold

It’s important to understand the difference between ‘Sale Agreed’ and ‘Sold’. Sale agreed means that an offer has been made on your property and accepted by you, but the sale is not yet complete. Sale agreed is not legally binding and both you as the seller and the buyer may still pull out of the sale with no legal ramifications. Until the contracts are signed and the money has exchanged hands, the deal is not yet done.

In order for a sale to be complete, a contract for sale must be drawn up by the seller’s solicitor and signed by both parties and the agreed purchase price must be paid. Once this has happened, the property is officially sold.

The contract for sale will detail a number of important things, such as:

– The names of the buyer and seller
– The address of the property being sold
– A description of the property, such as the number of bedrooms and bathrooms
– The agreed purchase price
– The date on which the sale will be completed. This is known as the ‘closing date’.
– Any special conditions that have been agreed, such as the buyer being given a certain amount of time to arrange a mortgage.

It’s important to note that, once the contract for sale has been signed,  both parties are legally bound to go ahead with the sale. If the buyer pulls out of the sale, the vendor can forfeit  the deposit paid andmay also seek additional compensation for proven losses. Similarly, if the seller decides not to sell they may face legal action for losses incurred by the purchaser.

Conclusion

Selling a house in Ireland can be a daunting task, but with the help of a professional and some knowledge of the process, it can be a relatively smooth experience. Be sure to consult with both an auctioneer and solicitor to ensure that you are getting the best possible service. And don’t forget to factor in the various taxes and fees that you’ll need to pay. With a little preparation, selling your home in Ireland can be a breeze!

Please get in touch with us at Kevin O’Higgins Solicitors if you have any questions.

Buying property in Ireland: What you need to know

Buying property in Ireland: What you need to know

by | Jul 13, 2022 | Property

Buying property in Ireland: What you need to know

Are you thinking of buying a property in Ireland? If so, wrapping your head around the process involved is integral to ensuring the transaction  goes smoothly. For many people, buying a home or a new property will be one of the biggest financial decisions of their life. By informing yourself of all the need to know information before you embark on this journey, you put yourself in a position to make the transaction as pain free as possible. In this blog post, we will discuss some of the key things you need to know when buying property in Ireland. We will cover the importance of getting a property evaluated, the difference between “sale agreed” and “sold”, the different title situations that can arise, as well as some of the legal aspects involved in purchasing property. So, whether you’re a first-time buyer or an experienced investor, read on for more information!

Buying property in Ireland

If you’re thinking of buying property in Ireland, the first thing you need to do is figure out what your budget is so you can determine – (1) how much of a deposit you can afford, and, (2 ) your ability to afford the monthly mortgage repayments. This involves budgeting for all aspects of buying and owning a property such as mortgage costs, solicitor’s fees, insurance etc.

The amount you can borrow as a mortgage loan and how much you need to put down as a deposit is regulated by Central Bank lending limits. Currently in Ireland, the minimum amount you must put down as a deposit in order to receive a mortgage is 10% of the total price of the property you are looking to purchase. It’s important to get a mortgage pre-approval before you start looking at properties so that you know exactly how much you can spend.

Another important step in the process is to employ the help of an experienced and qualified conveyancing solicitor – a solicitor who specialises in the purchase and sale of property. There are many complicated legal processes and documentation involved in the purchase of any property – some of which will be discussed later – which can be very hard to navigate and understand without the aid of a professional. Working with a solicitor you trust will ensure the transaction is road mapped and carried out in as smoothly a manner as possible.

Surveying the property

The next step is to find a property that you like and that meets your needs and budget. Once you have found a property, it is important to get it evaluated by a professional before proceeding any further. While there are certain things that a seller must inform you on before a sale can be closed, there is no onus on the seller, their auctioneer or their solicitor to inform you of every aspect and detail of the property. There can be hidden problems with the property that you may not be aware of and an evaluation will help to identify any of these potential pitfalls.

Additionally, if you are still at the price negotiation stage, getting a property evaluated can give you an idea of what the property is actually worth. Going into any negotiation as informed as possible is always key to getting the best bang for your buck.

Any potential problems with the property, such as structural issues, title issues or dampness may be discovered. Once you have the evaluation, you can start negotiations with the seller, taking the findings of the survey into account when submitting your offer. You may also choose not to make an offer at this point.

Sale Agreed vs. Legal Sale

When you make an offer on a property and your offer is accepted, this is called a ‘sale agreed’ and is not legally binding. There is an agreement in principle to go through with the sale but either party can still back out at this point. To make it legal, you need to get to contract signing. When this is achieved both the buyer and the seller are legally bound to go through with the sale when they agree on the sale price of the property and both parties have signed the contract. The contract for sale will have been signed at this point with a deposit paid by the buyer. You can instruct your solicitor to start the legal process. The solicitor will investigate the title, planning , property taxes, local authority issues  and other documents to make sure that everything is in order before proceeding with the sale. If you are borrowing your solicitor will be checking in with your lender and dealing with their requirements.  They will also liaise with the seller’s solicitor to ensure that everything is going smoothly and all timelines are met. Once all the paperwork has been finalised, you will be ready to sign the contract and complete the purchase!

Title Situations

Something to be aware of when buying a home are the potential title situations that could exist regarding the property you are looking to purchase. In property law, the “title” refers to all of the property rights that belong to a proprietor of a specific property. Before purchasing a property, it is incredibly important to understand who actually owns the property and whether there are any outstanding debts or other rights on it.

This is another reason why it is so important to work with a solicitor when purchasing property. Your solicitor can complete checks regarding the title of your deserved property and advise you on anything of note. The language used in titles and deeds can often be very complicated and even archaic. Having an experienced solicitor who can explain these situations in layman’s terms can be invaluable.

If you’re buying a property with a mortgage, your lender will also do a search to make sure there are no problems with the title. There are two main types of title for properties in Ireland – freehold and leasehold. Freehold means that you own the property outright and are responsible for the upkeep and maintenance of the property. Leasehold means that you have a long-term lease on the property, typically for a period of 99 years, and are responsible for the upkeep of the property during that time. Additionally, generally speaking, with freehold possession you are said to own the building and land upon which the property is built, whereas with leasehold, you are only said to own the building. The type of title will be one of the factors you need to consider when purchasing a property.

Planning Permission

When purchasing a home, it is incredibly important to ensure that there are no planning issues with the property. The best way to do this is by working with an experienced conveyancing solicitor who knows what to look for.

There are many things that solicitors would refer to as planning issues. Examples would be things like homes being built with additional buildings such as garages that never received planning permission, extension being built on a property that never received planning permission, velux windows being installed in the front of a house that never received planning permission, attic conversions that are being used habitually with no planning permission received.

If issues such as these go undiscovered prior to purchase, they can become incredibly costly and can lead to unwanted stress, hassle and even litigation. Once you become the owner of a property, all pre-existing planning issues become your liability and your responsibility to rectify. If it is subsequently discovered that planning permission was required for a specific build on a property but was not requested or granted, the planning authority may require the works to be reversed at the expense of the current owner.

Contract for sale

Once you have a contract for sale, there are several important things to do before completion such as getting buildings insurance, arranging your mortgage finance if you haven’t already done so and booking a surveyor to assess the value of the property. You will also need to provide proof of identity and address to your solicitor as well as any other required documentation. Completion usually takes place four to six weeks after signing the contract for sale. Once everything has been finalised, you will be ready to move into your new home!

Bridging Funds

If you are planning to sell your home to buy another one, you can no longer take out what was known as a ‘bridging loan’ which was a sum of money used to cover the gap between two transactions on a short-term basis. You must have the funds readily available to purchase a new property. This may mean that you must sell your home first and then rent for a period until you have the necessary funds to buy another property. Dealing with the simultaneous sale and purchase of properties at the same time can be very stressful. Working with a solicitor with years of experience in these transactions, such as Kevin O’Higgins Solicitors, can make a difficult and complex transaction much easier.

Conclusion

There are many things to bear in mind when buying property in Ireland but, if you do your research and ensure you are well informed, it can be a relatively smooth process. Seeking advice and working with experienced legal professionals, such as Kevin O’Higgins Solicitors, will be paramount to ensuring a successful transaction.

We hope you found this blog post informative. If you have any questions or would like to know more about buying property in Ireland, please get in touch now via our contact page.

Thank you for reading!

Finding the Right Solicitor to Make Your Will

Finding the Right Solicitor to Make Your Will

by | Jun 23, 2022 | Making a Will

Finding the Right Solicitor to Make Your Will.

Making a will can be a complex legal process. There are many varying steps that require a level of detail that may lead to complications or misunderstandings. Therefore, finding the correct solicitor to develop your will can be a crucial choice – ensuring that your loved ones stay out of court, avoid dispute, and so on. Making a will is not required by law in Ireland, but it is an important step in ensuring that your estate is divided amongst your loved ones as you wish. In this blog, we will take a deep dive into the will-making process in Ireland and how matching the right solicitor with the right circumstances can prevent future headaches further down the road.

 

Before we begin this blog, it is important to have an understanding of some legal definitions when it comes to will-making/probate law, as they will crop up throughout.

Estate – Simply, the possessions that you own and/or intend to divide among your chosen beneficiaries.

Beneficiaries – The recipients of your estate. 

Testator – The person who writes the will i.e the person with the capacity to make the will.

Intestate – If you pass away without leaving a will, you are said to have died ”intestate”.

Witness – The people or persons chosen to oversee the signing of the will and guarantee its validity.

Executor – The person entrusted to carry out the wishes of the will maker upon his or her passing.

 

When it comes to making a will in Ireland, there are many things to consider. There are also a certain number of legal requirements that must be met. You must be over the age of 18 and of sound mind to make a will. The will must also be officially laid out in writing, with your confirmed signature and the signature of two witnesses, present at the will’s completion.

Before we begin this blog, it is important to have an understanding of some legal definitions when it comes to will-making/probate law, as they will crop up throughout.

Factors to consider when deciding to make a Will

If you die without having made a will, you are said to have died intestate and your estate will be distributed according to the rules of intestacy. This may not be in line with your wishes and can cause disharmony and disputes among your loved ones.

One very important thing to consider when drafting a will is who you would like to appoint as Executor/s of your will. The Executor is the person who will be responsible for administering your estate in accordance with the terms of your will. This can be a daunting task and you should consider appointing someone you trust implicitly to carry out your final wishes.

You must also be aware of the potential for inheritance tax in Ireland – known as Gift and Inheritance Tax (Capital Acquisition Tax). This is a tax that is payable on the value of your estate above a certain threshold. The rate of inheritance tax is currently 33% but there are some reliefs and exemptions which can reduce this liability. Your will can be drafted with the impact of inheritance tax in mind. This is why it is incredibly important to employ the expertise of a solicitor when drafting your will. A good probate solicitor will be able to navigate the legal requirements to pay inheritance tax to ensure all relevant taxes are paid, while also ensuring your loved ones receive the appropriate amount of your estate.

Another thing to note, your assets are not the only thing to be considered when you are drafting your will. If you are someone with young children or dependents, another very important consideration when making your will is guardianship – who will care for your children if the unthinkable happens. You can appoint a guardian in your will to ensure that your children are cared for in the event of your passing.

What Should be the Contents of My Will?

A defined format for a will does not exist. According to Irish Probate Law, the will does not have to follow any particular order, but it must include the name and address of the testator, a revocation of any previous will that may have been produced, a named and appointed ”executor” along with their address. It is also advisable to list any assets and debts that the will maker has at the time of writing the will. This can be extremely helpful for the Executor as it gives them a starting point when it comes to distributing the estate.

Once these basic requirements have been met, you are free to include anything else in your will that you see fit. It is important to note that any Will made in Ireland must be signed by the testator and two independent witnesses in the presence of each other. The will must also be dated.

Ensuring that your will is drafted with the aid of a solicitor is imperative to avoid the creation of “DIY wills”, something which the courts in Ireland have had to contend with. The main reason for the existence of DIY wills is that people often try to avoid the perceived hassle and expense of employing a probate solicitor. However, the time, energy and cost of dealing with probate disputes and litigation off the back of an improperly prepared will, will almost certainly outweigh any initial expense.

Changing your Will in the Event of a Change of Circumstances

Once a will has been written, it does not mean it has to be set in stone.  If there are any developments in your personal circumstances, it is important to review your will and make any necessary changes.

If you wish to implement these changes, the testator can add a separate document, referred to as a codicil.  A Codicil is simply an amendment to an existing will and must be signed and witnessed in the same way as the original will. It is advisable to have your will reviewed by a solicitor every few years, or sooner if there are any major changes in your life such as marriage, divorce, birth of children etc.

However, if the circumstances have changed drastically, it might be more efficient to revoke the will entirely. To do this, you must destroy, burn or tear the will and all copies of it. From here, you should work with your solicitor to draft a new will to reflect your new wishes and change in circumstances.

The Role of the Solicitor in Making a Will

While it is possible to write your own will, it is highly advisable for one to employ the services of a highly qualified probate solicitor to write it for you, such as what we have on offer here at Kevin O’Higgins Solicitors. The role of the solicitor in this process can be dictated by you. You may wish for the solicitor to simply draft the will in accordance with your wishes or you may want the solicitor to take a more active role and advise you on tax planning, asset protection, the creation of a trust or other matters relating to your estate.

It is also worth noting that only a solicitor can certify a will for safekeeping by the Probate Office. This is important as, if you were to die without a will or with an invalid will, your estate would be distributed in accordance with the rules of intestacy which may not be in line with your wishes.

There is no set cost in the will-writing process, as the amount you pay will be dictated by the role you want your solicitor to take and the complexity of your estate.

At Kevin O’Higgins solicitors, we understand that each person’s circumstances are unique and we tailor our service to suit your individual needs.

Matching my Circumstances with the Right Solicitor

When looking for a solicitor to assist in the will-making process, it is important that you find somebody who you are comfortable with and who you feel confident will act in your best interests. You should also ensure that the solicitor has the relevant expertise and experience in Irish will-writing and Probate Law.

Once you have found a solicitor that you feel meets these criteria, it is important to discuss your individual circumstances with them and ensure that they understand your wishes. This will allow them to provide you, confidentially, with the best possible service and advise you on the most efficient way to distribute your estate.

 

Conclusion

At Kevin O’Higgins Solicitors, we pride ourselves on providing a personal and professional service to each of our clients. We take the time to get to know you and your circumstances so that we can provide you with the best possible advice.

If you would like more information on will-writing or any other probate law matters, please do not hesitate to contact Kevin O’Higgins Solicitors today.