“My brother passed away a couple of years ago. He had been farming the home farm, which had been left to him under our late father’s will, all his life. My nephew had been helping my brother on the farm during his later years, as my brother was not married and had no children. My nephew has continued farming the land since my brother died. I doubt my brother made a will, but presume something has to be done to deal with his assets. Have you any advice?”

First of all, sympathies on the passing of your brother. It is a difficult task to deal with a deceased family member’s affairs, especially when their nearest next of kin comprises surviving brothers and sisters. It can be a sensitive issue enquiring about a late relative’s affairs, but this will have to be attended to sooner rather than later.

Firstly, you should try to establish whether your late brother made a will. If he did, his estate will be divided up according to his instructions under his will. You should make enquiries with the solicitor who dealt with your family’s affairs. If that solicitor does not hold a will, they can make enquiries with other local solicitors, and if necessary publish a notice in the Law Society Gazette, which is circulated to all solicitors in the country. Once these enquiries have been made, if no will is found, your late uncle’s estate would then be distributed under the rules of intestacy.

Intestacy

Essentially, those rules provide that if your late uncle died without leaving a spouse, issue (child) or parent, the estate would be divided up among brothers and sisters in equal shares. If any brother or sister died before your late uncle but left children, then those children take their late parent’s share equally. An important consequence of the right to take a share in the estate of a deceased is that it also confers on those persons entitled (the brothers and sisters in this case) a right to extract a grant of administration intestate whereby one or more of the beneficiaries would become the legal representative of the estate. This is similar to the role of an executor under a will.

Normally, the beneficiaries come to an agreement for one person to be appointed. In the absence of agreement, it is possible to make an application to the court to have an independent person appointed, but this should be avoided if possible as it adds costs to the administration of the estate, depleting the assets available for distribution to the beneficiaries.

The legal personal representative, once appointed, can apply for a grant of administration intestate. This is the legal document which issues from the High Court Probate Office allowing the personal representative to collect all assets of the deceased and administer the estate.

Until this is issued, the personal representative is generally unable to deal with the assets owned by the deceased person. The estate is said to be vested in the president of the High Court until then.

Although the law allows one year from the date of death for a personal representative to give beneficiaries what is due to them, the time it actually takes to finalise matters depends on the circumstances of the individual case. It will usually be upwards of three months before a grant of representation issues.

It is important to be familiar with time limits in which to administer your late brother’s estate. Beneficiaries generally have six years in order to bring a claim against a personal representative to administer an estate.

Assuming the cause of action accrued on the death of your late uncle, the beneficiaries have six years from the date of your uncle’s death to bring an action to enforce their succession rights. So unless a personal representative is appointed within six years, the beneficiaries’ right to claim their share in the estate of your late uncle may become statute-barred.

I note that you mention that your nephew is in possession of the land. It would be important to have a personal representative appointed quickly to ensure that your nephew does not claim squatter’s rights.

Personal representatives have 12 years from the date of accrual of the right of action to recover assets of the deceased from a person claiming squatter’s rights. Beneficiaries would not be entitled to sue for the recovery of land which a squatter may be trying to claim, as it is the personal representative who holds the estate as trustee for the beneficiaries. Thus, a personal representative will need to be appointed and a grant of letters of administration taken out by him/her to enable recovery of possession of the land from the potential squatter.

Where no letters of administration are taken out, the property is vestsed in the president of the High Court, who is statute-barred after 12 years. Even so, the claim of beneficiaries against a personal representative would be statute-barred after six years. A subsequent grant of letters of administration does not revive this period.

This highlights the importance of taking steps to try and administer your late uncle’s estate sooner rather than later to protect the interests of any beneficiaries.