The Revenue Clearance procedure is very much focused on the role and liability of the executor. However, what if it is the case that the entire estate is held jointly? What happens then? Two scenarios arise. The first depends on if there is a will and the second is where the person dies intestate.

If there is a will, then the executor is still the person mentioned in the will. Okay, all of the assets pass outside of the terms of the will and also the will is not being sent to probate, but there is still a validly appointed executor. An executor’s appointment does not derive from the Grant of Probate but from the will and is effective as of the date of death.

If there is no will and all assets are jointly held, then the personal representative will be the normal per rep under the intestacy rules. Strictly speaking, a per rep is not in existence until the Letters of Administration issue and in probate theory, the President of the High Court is the per rep until the Letters of Administration issue. Further, there could be a range of potential per reps, eg surviving brothers/sisters, (depending on the usual rules) and so liability could arise across a range of per reps. In these cases, a common sense approach will have to be taken and one or maybe two individuals as appropriate may have to “step up to the plate” so to speak, and take on the role.

The Revenue has indicated that in these cases (be in testate or intestate) the procedure is the same and the steps are as follows:-

• Clearance is applied for through ROS/My Enquiries in the normal way;

• An email of explanation is provided, to include the reasons why representation is not being raised;

• A schedule of assets is completed and provided to Revenue;

• The due diligence questionnaire is completed and provided to Revenue.

Just because a person dies holding joint assets, that doesn’t mean that there is no investigation into their prior income tax/CGT life. So the normal investigations are conducted and also a Form 11/12 is filed as per normal.

There are modifications in the above scenario for husband and wife situations depending on whether they are joint assessed or assessed individually and that will form the basis of a future blog. Also, the above procedure is not to be confused with the CA4 /IT8 clearance procedure for joint bank accounts over €50,000 which I’ll also discuss later.

Hope this helps and if you have any queries regarding probate, tax, capacity or will drafting please let me know by emailing me at ckelly@hcalaw.ie