All probate solicitors would be aware of Order 79 Rule 23 of the Rules of the Superior Courts. In case you need a refresh, it is as follows

23. In the case of a person residing out of, or about to leave the jurisdiction of the Court, or who, in the opinion of the Court or the Probate Officer, is suffering from a severe continuing physical disability, administration, or administration with the will annexed, may be granted to his attorney, acting under a power of attorney.

This relates to when a solicitor can do a power of attorney grant. As the name suggests a power of attorney grant is where an executor or administrator enters into a power of attorney (which has a set format) appointing another person in Ireland to act as executor/administrator in Ireland.

When you do a power of attorney grant where there is a will, it will always be a will-annexed case.

As the above rule states, the power of attorney grant can only be used in two cases. Where the executor/administrator is abroad or where they suffer from a “severe continuing physical disability”. The power of attorney grant is used in the vast majority of cases where the executor/administrator resides abroad. Using the power of attorney in cases where the executor is under a physical disability is less common. This can be used where the executor is in Ireland. In those cases, the physical disability must be supported by a medical affidavit. The probate office must be satisfied that the executor is of sound mind, but not in a position to deal with the estate due to the physical disability.

Just because an executor lives abroad that doesn’t mean that an executor cannot be appointed, or to avoid the double negatives, an executor who resides abroad can be appointed as an executor for an Irish will. The executor residing abroad will have to swear the oath or other documents in front of a solicitor abroad or otherwise confirm to the rules related to swearing documents outside of the jurisdiction.

The principal rationale for going down the power of attorney route is convenience. For obvious reasons, it is easier to deal with an Irish-based executor than a foreign one.

It should be noted that it is not uncommon for the solicitor acting in the estate to be appointed attorney. Although it doesn’t have to be the Irish solicitor. Anyone based in Ireland can act as an attorney. The form of the attorney is not in Appendix Q but can be found in Mongey.

In the vast majority of cases, it is our preference that we be appointed attorneys where the executor is abroad, as it just generally speeds up the post-grant closeout of a file. However, there are various good reasons why a solicitor should think twice about being appointed as an attorney in Ireland. These could include:-

• a solicitor may be cautious in acting as an attorney where it is likely that property will be leased on a long-term basis;
• where there will be unregistered title conveyances. Perhaps solicitors may be reluctant to be one of the named parties on title in a chain of title situation;
• Where there are significant debts in an estate or an estate is insolvent or barely solvent;
• Where there is likely to be litigation in the estate.

So these may be some of the areas that may give a solicitor pause for thought. However, generally using the power of attorney system works very well and is on balance the preferred route when dealing with foreign executors.

Finally, it should be noted, just because a solicitor is appointed as attorney, that does not increase or decrease that solicitor’s secondary liability for CAT for non-resident beneficiaries. That arises regardless and under separate rules and that has been the subject of previous blogs on the probate hub.

Hope this helps and if you have any probate, will drafting or capacity issues please do not hesitate to email me at ckelly@hcalaw.ie. Colm Kelly solicitor