A surprising number of people die without a will. Some never got round to it, some made a will that no longer works because the person it was made for died first, and some believed that everything would pass to a spouse or to children automatically and in the right shares. When that happens the law supplies the will the deceased did not make. Part VI of the Succession Act 1965 fixes who inherits, the Rules of the Superior Courts fix who may administer, and the Probate Office, Revenue and on occasion the High Court decide how long it all takes. This article sets out the principles that govern an intestate estate, the difficulties that families meet in practice, and the steps that we take in this office to bring such an estate from the date of death to the final distribution.
What intestacy is
A person dies intestate when they leave no valid will, and partially intestate when their will disposes of only part of their property. The second case is more common than one would expect. A will that leaves everything to a spouse who has already died, with no gift over, disposes of nothing. A will that deals carefully with the house and says nothing about the bank accounts, the shares or the car leaves the rest to be distributed as if there had been no will at all, which is what section 74 of the Act provides. A will that was not properly executed, or that was revoked by a later marriage, produces a full intestacy however clear the testator’s wishes may have been.1
The intestate estate is what remains after the funeral and testamentary expenses, the debts and any legal right have been paid, and it is distributed in accordance with Part VI.2 Not everything the deceased owned forms part of it. Property held as joint tenants, which in most families includes the home and the joint bank account, passes to the survivor by survivorship and never reaches the estate. Credit union savings pass under a nomination made by the member up to a limit of €27,000, and only the excess falls into the estate.3 Death in service benefits and pension lump sums are commonly paid at the discretion of trustees, and a life policy written in trust is paid to the trustees of that trust. The first task in any intestate estate is therefore to separate what passes under Part VI from what passes outside it, because the answer changes both the shares and the tax.
Who inherits
The rules are mechanical and admit of no discretion. If the deceased leaves a spouse or civil partner and no children, the spouse or civil partner takes everything. If the deceased leaves a spouse or civil partner and children, the spouse or civil partner takes two thirds and the children share the remaining third equally. If the deceased leaves children and no spouse or civil partner, the children take everything in equal shares. Where a child has died before the deceased leaving children of their own, those grandchildren step into their parent’s place and take between them the share their parent would have taken, which lawyers call distribution per stirpes.4
Where there is neither spouse nor issue the estate goes to the parents in equal shares, or to the survivor of them. Failing parents it goes to the brothers and sisters equally, the children of a brother or sister who has died taking their parent’s share so long as at least one brother or sister survives, and failing brothers and sisters it goes to the nephews and nieces equally.5 Beyond that the Act turns to the next of kin, who are the persons standing nearest in blood to the deceased, counted in degrees upwards from the deceased to the common ancestor and down again to the relative, with relatives of the half blood ranking equally with those of the whole blood and no representation admitted among the more distant collaterals.6 In default of anyone at all the State takes as ultimate intestate successor, though the Minister for Public Expenditure may waive the State’s right, in whole or in part, in favour of a person who can show a moral claim, and that waiver is sought more often than one might think.7
Who counts as a child or a relative is as important as the shares. Since 1988 relationships for succession purposes have been traced without regard to whether the parents were married to each other, so a child born outside marriage inherits from a parent exactly as a child born within it, and the Act has since been extended to children born through donor assisted reproduction.8 An adopted child is treated as the child of the adoptive parents and inherits from them and through them. A step child who was never adopted is not a child for these purposes however long the relationship lasted, and takes nothing on intestacy. A cohabitant, however long the relationship, has no entitlement under Part VI at all. A qualified cohabitant, which broadly means a person who lived with the deceased as a couple for five years, or for two years where there is a child of the relationship, may apply to the court for provision out of the estate, but the application must be made within six months of the grant and the court must be satisfied that proper provision was not made during the deceased’s lifetime.9
Marriage is not the end of the enquiry either. A decree of divorce ends the status of spouse and with it any entitlement on intestacy, though a former spouse may apply to the court for provision out of the estate unless an order was made barring that relief, and on or after a decree of judicial separation the court may, on application, make an order extinguishing the share that either spouse would otherwise take in the other’s estate.10 A separation agreement will almost always contain a mutual renunciation of succession rights, and such a renunciation can displace a spouse’s entitlement on intestacy, though it is only as strong as the agreement itself. In S.M. v S.L. a doctor died intestate and without children, the deceased’s mother and separated spouse both claimed the grant, the spouse challenged the separation agreement on the grounds of illness, want of advice and improvidence, and the High Court allowed the mother to extract the grant while staying any distribution for six months so that the spouse could litigate the agreement’s validity.11 A spouse who deserted the deceased for two years or more before the death, or whose conduct justified the deceased in living apart, is excluded from any share on intestacy, as is a person found guilty of the murder, attempted murder or manslaughter of the deceased, and in each case the estate is distributed as though the excluded person had died first.12
Two further rules adjust the shares among children. The first is hotchpot. A gift made by the deceased during life by way of permanent provision for a child, such as a site, the deposit for a house, money to set the child up in business or an education beyond that given to the other children, is presumed to have been made in or towards satisfaction of that child’s share and must be brought into account at its value when it was made, unless a contrary intention appears.13 Families frequently disagree about whether a particular gift was an advancement, and the burden of proving it lies on the person who asserts it unless the deceased recorded it in writing. The second rule is the absence of any court discretion. Section 117 of the Act, which allows a child to apply to the court where a parent has failed in their moral duty to make proper provision in a will, applies to testators only. On an intestacy each child takes the fixed share and no more, however unequal the result may be in the light of the family’s circumstances, the only exception being the limited application available where the deceased leaves a civil partner and children.14
The surviving spouse or civil partner has one important protection beyond the fixed share. Where the estate includes the dwelling in which the survivor was ordinarily resident at the death, the survivor may require the personal representatives in writing to appropriate it, together with the household chattels, in or towards satisfaction of their share, and while that right subsists the personal representatives may not sell the dwelling without the survivor’s consent or the leave of the court.15 The right must be exercised within six months of being notified of it by the personal representatives or one year from the grant, whichever is later, and where the dwelling is part of a farm, a business premises or a larger building the court’s authority is needed. Where the dwelling is worth more than the survivor’s share the difference must be paid to the estate, though the court can relieve hardship.
Who may administer
Here intestacy differs from a will in a way that families feel immediately. An executor takes authority from the will and can act from the moment of death. On an intestacy nobody has authority until the court grants it. Between the death and the grant the estate vests in the President of the High Court as a corporation sole, the administrator once appointed takes title from the grant rather than from the death, and the Act makes clear that nobody may act as personal representative of the estate without one.16 Nobody can lawfully sell the house, close the accounts, continue the business or give a good receipt in the meantime.
The person entitled to the grant is fixed by Order 79, rule 5 of the Rules of the Superior Courts, and the order follows the order of entitlement to the estate. The surviving spouse or civil partner comes first, then the children, then the children of a child who has died, then the parents, then the brothers and sisters, then the children of a deceased brother or sister, and so on through the grandparents, uncles and aunts, great grandparents and first cousins.17 Where several people stand in the same degree any one of them may apply, but a person with a prior right must renounce before someone further down the list can take the grant, and the Probate Office will stop an application whose title is incomplete or inconsistent with the certificates. A renunciation signed before a neutral witness is final in the sense that the renouncing person cannot later take part in the administration without the leave of the court, which is a point worth explaining to a widow or widower who is minded to let a child take the grant to save trouble.18
The administrator must also give a bond to the President of the High Court in a penalty of double the gross value of the estate, which the Probate Officer may reduce, and sureties can be required by the court, the Probate Officer or a district registrar, though in solicitor applications they rarely are.19 The bond is the price of the authority. It is the administrator’s personal covenant to collect the assets, pay the debts and distribute the estate according to law, and it is enforceable against them if they do not.
Where the family cannot agree who should apply, where the person entitled will neither act nor renounce, or where there is a conflict between the person entitled and the estate, the court can intervene. Section 27(4) of the Act allows the High Court, by reason of any special circumstances, to grant administration to such person as it thinks fit, and the Circuit Court has the same power within its jurisdiction.20 The Supreme Court made clear in Dunne v Heffernan that the circumstances must be serious, and the Court of Appeal held in Dunne v Dunne, a case about a farm held by one of fourteen children of an intestate who had died more than twenty years earlier, that the court will not displace an administrator unless it is necessary to do so, a conflict of interest arising from the pleadings not being enough on its own.21 A creditor can use the same section. In Re Kelly a lender whose borrower had died intestate without any grant being extracted obtained an order for a grant to an administrator ad litem so that it could pursue its security, though the court required that the family be notified first and treated that notification as a fundamental aspect of a fair hearing.22 Short of a full application, a person who fears that the wrong person will take the grant can enter a caveat in the Probate Office, which stops any grant issuing until the caveat is warned and the dispute resolved, and a person entitled who will not move can be cited to accept or refuse the grant.
The challenges clients face
Four difficulties recur. The first is the gap in authority. In the months between the death and the grant the bank accounts are frozen, the insurer wants to know who is occupying the house, the tenants do not know to whom to pay the rent, and if the deceased ran a business there is nobody to sign a cheque or renew a contract. Most of this can be managed. Banks will release funds for the funeral on production of the invoice, insurers will note the position, and in an urgent case a limited grant ad colligenda bona can be obtained to preserve a perishable asset or a trading business before the full grant issues. What cannot be managed is a family that does not start. The papers for a grant intestate take weeks to assemble and the Probate Office takes months to process them, and every month lost at the beginning is lost at the end.
The second is establishing the family. The applicant must swear to the deceased’s civil status and to the absence of anyone with a prior entitlement, and the Probate Office will not issue a grant on a title it cannot follow.23 That means certificates, a long form birth certificate for a child of a deceased who never married, the divorce or separation order where there was one, the civil partnership registration where that applies, and in the case of a deceased who left no spouse, children, parents or siblings a family tree going back to the grandparents on both sides. Relatives abroad must be found and written to. An unknown child, a half sibling nobody mentioned, a marriage in another country or an adoption that one branch of the family has forgotten all change the shares, and the administrator who distributes on the basis of an incomplete picture is personally exposed to the person left out. In the larger or older estates we instruct a genealogist, and the cost is almost always justified.
The third is the family home and the one third. A widow or widower with children is entitled to two thirds of the estate and nothing more. Where the home was in the sole name of the deceased and is the main asset, the children between them own one third of it from the moment of death, and if any of them is under eighteen that share is held on trust until the child comes of age and cannot be waived by a parent on the child’s behalf. The spouse can require the home to be appropriated to their share, but if the home is worth more than two thirds of the net estate the balance must be found from somewhere, and the court’s power to relieve hardship goes only so far.24 Adult children who are content to let a parent have the house can disclaim or assign their shares, with care for the tax consequences, but the arrangement must be documented properly or it will unravel when the house is eventually sold. The same arithmetic produces real difficulty where the asset is a farm or a business, which Part VI divides among the issue without any regard to who has been working it.
The fourth is tax and the claims of the State. Each beneficiary is liable to capital acquisitions tax on what they receive above their tax free threshold, which for inheritances taken on or after 7 October 2026 is €420,000 for a child, €44,000 for a brother, sister, niece, nephew or grandchild and €22,000 for anyone else, at a rate of 33 per cent, and each must file their own return.25 A spouse or civil partner is exempt. Because intestacy sends property to the people the Act names rather than to the people the deceased would have chosen, it often produces tax that a will would have avoided, for instance where a share passes to a sibling or a nephew at the lower threshold when the deceased had a cohabitant or a step child in mind. Separately, where the deceased was in a nursing home under the Fair Deal scheme, or received a means tested social welfare payment at any time, the personal representative must give the HSE or the Department of Social Protection written notice of the intention to distribute, with a schedule of the assets, at least three months before any distribution, and an administrator who distributes without doing so is personally liable for whatever the State would have recovered.26 Revenue will also expect the deceased’s income tax to be brought up to the date of death and any capital gains tax on sales by the estate to be paid before the money goes out.
Running through all of this is time. For those who die with a will the position has improved markedly this year. Since 2 June 2026 solicitors have been able to file applications for grants of probate on the Courts Portal, the Dublin Probate Office is processing those applications within three to four weeks, and the Courts Service reports that online filings contain half the errors of paper ones.27 Intestate applications are not yet on the portal. They are still lodged on paper, and in October 2026 the Dublin office was working on paper solicitor applications lodged in mid July, a wait of about three months before any requisition is even raised. The Courts Service expects to add intestacy applications to the portal before the end of 2026, which will be a welcome change.28 Meanwhile the statutory clocks run. The personal representatives cannot be sued for failing to distribute within a year of the death, a claim to a share in the estate must be brought within six years of the right accruing, a claim against the estate by a creditor or in tort within two years of the death, and the applications open to a cohabitant and to the child of a deceased civil partner within six months of the grant.29 Several of these periods run whether or not anyone has taken the grant, as the family in Dunne v Dunne discovered when the siblings who sued their brother for an account of their father’s farm were met with a plea that their shares were statute barred.30
The steps, in order
The order in which an intestate estate is administered matters because each step depends on the one before. The first step is to confirm that there is no will. Ireland has no public register of wills, so this means searching the deceased’s papers, writing to any solicitor the deceased is known to have used, asking the bank whether anything is held in safe custody and, in an appropriate case, placing a notice in the Law Society Gazette. A will discovered after a grant of administration has issued means that the grant must be revoked and the process begun again, and an administrator who has distributed in the meantime is in a difficult position, so this is not a step to hurry.
The second step is to gather the evidence of the death and of the family. The death certificate, the marriage or civil partnership certificate, the birth certificates needed to prove the applicant’s title and, where relevant, the separation agreement, divorce decree or adoption order are obtained, and a family tree is drawn up and confirmed by the applicant. At this stage we identify every person entitled to a share under Part VI, everyone with a prior or equal right to the grant, anyone who will need to renounce, and anyone who may have a claim outside Part VI, such as a cohabitant or a former spouse. The third step is to secure and value the estate at the date of death. Letters go to each bank and building society, the credit union, the life and pension providers, the share registrars, the employer, Revenue and the Department of Social Protection, a valuer values the property, the contents and any vehicle, the debts and liabilities are listed, and the assets that pass outside the estate are separated from those that pass under it. This is also the stage at which we ask about lifetime gifts to children, because hotchpot has to be addressed before anyone is told what their share is.
The fourth step is the Statement of Affairs (Probate), the Form SA.2, which replaced the Inland Revenue Affidavit in September 2020 and is filed online with Revenue. It lists every asset and liability, identifies each beneficiary and their relationship to the deceased, and states the value of each benefit. When Revenue accepts it, it issues the Notice of Acknowledgement which must accompany the application to the Probate Office.31 The fifth step is the application itself. The administrator swears the oath, which sets out the deceased’s civil status, the applicant’s relationship and title and the gross value of the estate, executes the bond before the same commissioner or solicitor, and the papers are lodged together with the death certificate, the Notice of Acknowledgement, any renunciations and consents, the notice of application and the Probate Office fee. The Probate Office examines the papers and raises any requisitions, and when it is satisfied the grant of letters of administration intestate issues.32
The sixth step begins with the grant. The administrator collects the assets, places a statutory notice for creditors so that the estate can be distributed safely once the notice has expired, pays the funeral and testamentary expenses and the debts in the order the Act prescribes, settles the deceased’s income tax to the date of death and any capital gains tax, gives the three month notice to the HSE or the Department where it is required, and deals with the property, which is either sold by the administrator or vested in the beneficiaries by an assent registered in the Land Registry or the Registry of Deeds.33 The surviving spouse’s election to take the home is made in writing at this stage, and where any beneficiary is a minor trustees are appointed to hold the share. The seventh and final step is distribution. An administration account is prepared showing what came in, what went out and what each person is to receive, the hotchpot adjustments are made, each beneficiary signs a receipt and indemnity, their capital acquisitions tax returns are filed, and the estate is closed. Done in this order, with the family kept informed at each stage, most intestate estates are completed within twelve to eighteen months of the death, allowing for the Probate Office. Done out of order, or started late, they take years.
How this office approaches intestate estates
Intestate estates form a regular part of the work of this office, and they are handled by the probate and conveyancing team under Alan Brophy, which matters because almost every intestate estate ends with a house or land being sold or transferred and the two pieces of work are best done together. We have administered estates where the next of kin were in several countries, estates in which the family tree had to be reconstructed by a genealogist before anyone could swear to the title, estates holding farms, rented property and trading businesses, estates subject to Fair Deal and social welfare recoupment, and estates in which the entitlement to the grant was itself contested. Where a dispute arises, whether over the validity of a separation agreement, the status of a lifetime gift, the removal of an administrator or an application under section 27(4), the firm’s litigation practice under Robert Bourke takes it on, so that the family is not sent elsewhere at the moment the estate becomes difficult.
The method is the one described above. At the first meeting we establish what the deceased owned, who the family are and whether there is any possibility of a will, and we give a written map of the entitlement under Part VI and a written estimate of the costs before any work is done. We then assemble the papers, deal with the Probate Office and Revenue, and keep the family informed of where the application stands, which in our experience is the single thing that reduces friction among beneficiaries who are waiting. Where the family wish to depart from the fixed shares, for example to allow a surviving parent to keep the home or to keep a farm in the hands of the child who works it, we document the arrangement by deed of family arrangement with the tax consequences worked out in advance, so that it holds when the property is eventually sold or the next death occurs.
A closing word
The surest way to deal with intestacy is to prevent it. A will costs little, it can be changed as often as circumstances change, and it allows the people the deceased actually cared for, including a partner, a step child or a child who needs more than the others, to be provided for in a way that Part VI will never achieve. But where a death has already happened without a will, the estate is not a lost cause. The rules are fixed and they are knowable, the process has a settled order, and the difficulties described in this article are all ones that can be managed if they are addressed early. The worst outcomes we see are not caused by the absence of a will. They are caused by families who distribute informally among themselves, by administrators who sign the bond without understanding what it binds them to, and by estates that are left to sit for years until the limitation periods have run. Early advice avoids all three.
This article is for general information only and does not constitute legal advice. The capital acquisitions tax thresholds and the Probate Office processing times stated are those published in October 2026 and will change. Advice should be taken on the facts of any particular estate.
Notes
- Succession Act 1965, sections 74 (partial intestacy) and 85 (revocation of a will by subsequent marriage). ↩
- Succession Act 1965, Part VI (sections 66 to 75), and in particular section 66. ↩
- Credit Union Act 1997, section 27; the nomination limit was increased from €23,000 to €27,000 with effect from 22 February 2024. ↩
- Succession Act 1965, sections 67, 67A and 67B, as substituted and inserted by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, sections 72 and 73. ↩
- Succession Act 1965, sections 68 and 69. ↩
- Succession Act 1965, sections 70, 71 and 72. ↩
- Succession Act 1965, section 73; the functions of the Minister for Finance under that section were transferred to the Minister for Public Expenditure by S.I. No. 318 of 2015. ↩
- Succession Act 1965, section 4A, inserted by the Status of Children Act 1987, section 29, with effect from 14 June 1988, and amended by the Children and Family Relationships Act 2015; Adoption Act 2010, section 58. ↩
- Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, sections 172 and 194. ↩
- Family Law Act 1995, section 14; Family Law (Divorce) Act 1996, section 18. ↩
- S.M. v S.L. [2022] IEHC 585 (Butler J). ↩
- Succession Act 1965, section 120. ↩
- Succession Act 1965, section 63. ↩
- Succession Act 1965, section 117(1); section 67A(3) and (7), as amended by the Children and Family Relationships Act 2015. ↩
- Succession Act 1965, section 56, in particular subsections (1), (5), (6) and (8). ↩
- Succession Act 1965, sections 13 and 27(5). ↩
- Rules of the Superior Courts, Order 79, rule 5; Courts Service, Solicitor’s checklist, Grant of Administration Intestate. ↩
- Courts Service, Solicitor’s checklist, Grant of Administration Intestate, note 17 above, under the heading Renunciation. ↩
- Succession Act 1965, section 34. ↩
- Succession Act 1965, section 27(4). ↩
- Dunne v Heffernan [1997] 3 IR 431; Dunne v Dunne [2016] IECA 269 (Peart J). ↩
- In re Kelly, deceased [2024] IEHC 87 (Stack J). ↩
- Courts Service, Solicitor’s checklist, Grant of Administration Intestate, note 17 above, under the heading Title. ↩
- Succession Act 1965, section 56(9) and (10). ↩
- Capital Acquisitions Tax Consolidation Act 2003, Schedule 2; Revenue, CAT thresholds, rates and aggregation rules, thresholds applying to gifts and inheritances taken on or after 7 October 2026 as announced in Budget 2027. ↩
- Nursing Homes Support Scheme Act 2009, section 27; Social Welfare Consolidation Act 2005, section 339. ↩
- Courts Service, Probate online to go live for solicitors nationwide on the Courts Portal from 2 June 2026 (31 May 2026); Courts Service, Probate processing times (updated 12 October 2026). ↩
- Law Society Gazette, Wait-times halved as solicitors file for e-probate, 28 September 2026. ↩
- Succession Act 1965, section 62; Statute of Limitations 1957, section 45, as substituted by the Succession Act 1965, section 126; Civil Liability Act 1961, section 9(2); Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, section 194(1); Succession Act 1965, section 67A(7). ↩
- Dunne v Dunne [2016] IECA 269, note 21 above. ↩
- Revenue, Statement of Affairs (Probate) Form SA.2, in use since 14 September 2020 in place of the Inland Revenue Affidavit (Form CA24) for deaths on or after 5 December 2001. ↩
- Courts Service, Solicitor’s checklist, Grant of Administration Intestate, note 17 above. ↩
- Succession Act 1965, section 49 (notice to creditors), section 52 (assents) and the First Schedule, Part I (order of payment of debts of a solvent estate). ↩