Do I Need Probate to Keep My Home After My Spouse Dies?

Usually probate is not required if all assets are held jointly as joint tenants or there are only small assets so the estate can be managed under the small Estates Procedure, which is an estate worth less than €25,000. 

In Ireland, the need for probate largely depends on how the property was owned. Most of the time, jointly owned property will be passed to the surviving spouse based on 'survivorship'. This also applies to other jointly owned assets such as joint bank accounts, although probate may be required depending on the rules of the relevant financial institution or if the joint account was for convenience purposes only.

Understanding Property Ownership in Ireland

When determining whether probate is required, the first step is to establish how the property was owned. The solicitor that was used for conveyancing when you bought this property will know this information. In Ireland, there are two main types of property ownership for couples:

1. Joint Tenancy – If you and your spouse owned the property as joint tenants, ownership automatically transfers to the surviving spouse upon death. This is known as the right of survivorship, meaning probate is generally not required to transfer the property into your sole name. It is normal for a husband and wife to own their home as joint tenants and is often a condition of the mortgage used to buy the home. 

2. Tenancy in Common – If the property was owned as tenants in common, each spouse has a distinct share in the property. In this case, your spouse’s share forms part of their estate and is subject to the terms of their will or intestacy laws (if no will exists). This often requires probate to transfer ownership if the value of the remaining share is over €25,000

   
   

Examples of How Ownership Affects Probate

• Example 1: John and Mary are married and owned their home as joint tenants. When John passed away, Mary automatically became the sole owner of the property, and probate is not required.

• Example 2: Paul and Susan owned their home as tenants in common, with Paul holding a 60% share and Susan holding 40%. When Paul passed away, his share became part of his estate and required probate before it could be transferred according to his will. This is not common as joint tenancy and is often a condition of the mortgage used to buy the home. 

Does the Presence of a Will Affect Probate?

No, unless the property was owned as tenants in common. If that’s the case, then yes, you will need to look at the will and obtain a Grant of Probate to transfer your spouse’s share of the property. If there is no will (intestacy), a Grant of Letters of Administration is required to distribute assets, including the deceased’s share of the property

What Happens If You Need Probate?

If probate is required, the executor (or next of kin in cases of intestacy) will need to apply for a Grant of Probate or Letters of Administration through the Irish Probate Office. You are recommended to use a solicitor for this. 

What If There’s a Mortgage on the Property?

If the property still has an outstanding mortgage, it’s important to check if your spouse had mortgage protection insurance. Most lenders in Ireland require this insurance, which clears the mortgage balance upon the death of a borrower. If no insurance is in place, the surviving spouse may need to continue repayments or negotiate with the lender.

Steps to Take Next

1. Check the Ownership – Verify whether the property was owned as joint tenants or tenants in common. You can ask your solicitor who assisted you when purchasing the property

2. Obtain a Death Certificate – This is required for any legal proceedings related to the estate.

3. Consult a Solicitor – If you are unsure whether probate is needed, a solicitor can help you navigate the process.

4. Read our ‘Understanding the Process’ article to understand the next steps 

Conclusion

Whether you need probate to remain in your home depends on how the property was owned and whether your spouse left a will. If the property was jointly owned as joint tenants, it automatically transfers to you, and probate is not required. However, if it was owned as tenants in common, probate may be necessary to transfer ownership. Seeking legal advice can help you determine the best course of action for your specific situation.

If you need assistance with probate in Ireland, Simple Probate can guide you through the process with ease. Contact us today to learn more.

Disclaimer: Please note that the information provided in this article is for general informational purposes only and should not be construed as legal advice. It is always recommended to consult with a qualified legal professional for advice tailored to your specific situation. No liability whatsoever is accepted by Simple Probate from any action taken in reliance of the information contained on this website.