Title in Intestacy Cases and De Bonis Non

10 March 2022


This is just a short note of a reminder of title in intestacy cases where you are applying for a de Bonis Non.

Just a reminder. A De Bonis Non application is where a grant of probate or letters of administration have issued but the appointed executor/administrator has died. In intestacy cases you won’t go far wrong if you remember these two rules

  • Rule 1. Entitlement on death is the entitlement that remains. Or death sets entitlement.
  • Rule 2. Living applicants take precedence over dead applicants.

So for example, John died intestate survived by three siblings, Mary, Pat and Vincent. Pat took out administration and then died and it appears that John has land in his name that nobody knew about. So we must apply for a de Bonis Non in John’s estate. The only persons who can take out the de Bonis Non are Mary, Pat or Vincent. As Pat has now died, it is only Mary or Vincent who can do the honours. If Vincent has also died, then Vincent’s LPR cannot take out a de bonis non in John’s estate, as long as Mary is alive (presuming here that she has not renounced). On the death of Mary, Pat and Vincent, a common error that practitioners sometimes make is that they think that a nephew of John is the next in line to take out the DBN grant. This is based on a misunderstanding of the rule that live issue are preferred over deceased issue. In this example, the only persons that can take out a DBN where all of John’s siblings are deceased is a duly appointed LPR of one of Mary, Pat or Vincent.

There is a slight exception to this rule in the case of married persons. Where a married person dies intestate, the order of priority is that the spouse must take out the grant first. However, the spouse and children do similar rights of administration. So take the example of George. George died intestate and was survived by his wife Susan and children, Amy, Noel and Sean. Susan took out administration in the normal course and then died. Each of Amy, Noel and Sean are alive. In this case, it is not necessary to administer Susan’s estate to apply for a DBN in George’s estate. One of the children can apply. So the title is as follows

. . . .died intestate a married man leaving him surviving his widow Susan and that since his death Letters of Administration issued to his wife Susan from the district probate registry of [insert] on the [insert date] who has since died on the [insert date] leaving part of the estate unadministered and I am the lawful son . . .

Just something to watch out for.

Hope this helps and if you have any queries in relation to probate, capacity or tax matters please email me on ckelly@hcalaw.ie