Intestacy and Children: Rights of Minors in Ireland

If a parent has died without a will, you're likely trying to work out what the children are entitled to and how their share is protected. The intestacy rules in Ireland give children clear, fixed entitlements. But the exact share depends on whether the other parent is still alive. And a minor's inheritance is handled differently from an adult's.

This article covers what children inherit on intestacy, and how that share changes when a spouse or civil partner survives. It explains the equal rights of non-marital and adopted children, and how a minor's inheritance is held in trust until they reach 18. It also covers who actually applies for the grant when a child is the main beneficiary. It's written for surviving parents and guardians who need clarity at a difficult time.

What do children inherit on intestacy?

When a parent dies without a valid will, the Succession Act 1965 sets out fixed shares for their children. The children's entitlement depends entirely on whether the person who died also left a surviving spouse or civil partner.

Where a spouse and children both survive, Section 67(2) gives the spouse two-thirds and the children share the remaining one-third equally between them. Section 67A(2) does the same where a civil partner survives. There's no adjustment for the number of children, their age, or their needs — the one-third is simply divided into equal portions.

Where there is no surviving spouse or civil partner, Section 67B(1) gives the children the entire estate, again in equal shares. A child does not need to apply to claim the share itself — the entitlement arises automatically. But the estate must still be formally administered before any money can be paid out.

These shares apply to the net estate — the value of the assets after debts, funeral expenses, and the costs of administering the estate have been paid. Creditors are paid before any beneficiary, so the amount the children ultimately receive can be lower than the headline value of the estate.

Where a civil partner survives, a child can ask the court for more

There is one asymmetry worth knowing, because it's easy to miss. Where the person who died left a civil partner and children, Section 67A(3) allows a child to apply to court for provision out of the estate. The court can make that order only if it considers it would be unjust not to.

In deciding, the court looks at what the parent provided for the child during their lifetime, the child's age and reasonable financial requirements, the parent's financial situation, and the parent's obligations to the surviving civil partner. Section 67A(3A) is a limit: a child who is also a child of the surviving civil partner cannot apply.

Section 67A(4) caps what an order can do. The children must end up with no less than they would have taken without the order, and no more than they would have taken had no spouse or civil partner survived at all. So it adjusts the split; it doesn't rewrite it.

Which children count? Non-marital, adopted and step-children

Irish law treats a person's own children equally, whether or not their parents were married. The position is different for step-children, which often surprises blended families.

Non-marital children

Since the Status of Children Act 1987, a child whose parents were never married has exactly the same inheritance rights as a marital child. The Act abolished the old concept of illegitimacy for succession purposes and applies to deaths on or after 14 June 1988.

Where parentage is not already recorded — for example, where a father is not named on the birth certificate — it may need to be established before the share can be paid. This is usually straightforward but can require evidence, and is one situation where professional advice is worthwhile.

Adopted children

A legally adopted child is treated as a child of the adoptive parents from the date of the adoption order. They inherit from their adoptive parents on the same basis as a biological child, including the fixed share on intestacy.

Adoption ends the legal relationship with the birth parents. An adopted child therefore no longer has an automatic right to inherit on intestacy from a birth parent, because in law they are no longer that person's child for succession purposes.

Step-children

How a minor child's inheritance is held in trust

A child under 18 has the same right to their share as an adult, but they cannot legally take control of it. Nor can they give a valid receipt for it — the signed acknowledgement that allows an estate to hand money over. Under the Age of Majority Act 1985, a person reaches full legal capacity at 18. Until then, the inheritance must be held on the child's behalf.

Section 57 of the Succession Act 1965 deals with this. It allows the personal representative (the administrator of the estate) to appoint trustees to hold a minor's share. If no trustees are appointed, the personal representative holds the share as trustee. The money is the child's; it is simply looked after until they come of age.

In practice, the Section 57 trustees hold the share in a separate, clearly designated account or under a formal trust, and release it when the child turns 18. Lodging the money in court is not the ordinary route on an intestacy — Section 57 exists precisely so that trustees can be put in place without a court application.

Where the share is large, a surviving parent or guardian will usually take advice on how the trust should be set up and invested. That way the child's position is properly protected, and the trustees have something to point to if the arrangement is ever questioned.

Inheritance tax on a child's share

A child inheriting from a parent benefits from the most generous Capital Acquisitions Tax (CAT) threshold. A child can inherit up to the Group A threshold of €400,000 from a parent before any inheritance tax is due. Amounts above the threshold are taxed at 33%.

The threshold is cumulative. It counts the total of all gifts and inheritances a child has received from either parent since 5 December 1991. Where that running total stays within the threshold, no CAT arises — but a high-value estate, particularly one including property, can exceed it.

How children actually receive their share

Understanding the entitlement is the first step. For children to receive anything, the estate must be administered. When there is no will, this means applying for a Grant of Administration from the Probate Office, which gives the administrator legal authority to collect the assets, pay debts, and distribute the shares.

Someone has to take out the Grant of Administration, and the law decides who is entitled to do it — with a separate route where the person entitled is a child under 18. The general process, the documents needed, and typical timelines are covered in our guide to dying without a will in Ireland.

Until the grant issues, banks, the Land Registry, and other institutions will not release the assets the children are entitled to — the same requirement applies in the standard probate process. Where minor children are involved, the trust arrangements for their shares are usually settled as part of administering the estate.

Who applies for the grant when a child is the beneficiary?

On an intestacy the right to apply for the grant follows the beneficial interest: the closer you were to the person who died, the stronger your claim to the job. The Courts Service publishes the order, which reflects the Succession Act 1965 and Order 79, rule 5(1) of the Rules of the Superior Courts.

Where a parent dies leaving children and no spouse or civil partner, the children are first in line to apply. If they are all adults, one of them normally takes the grant. Someone entitled to apply is not obliged to do so. But stepping back is a formal step in itself — you cannot simply do nothing.

Under Order 79, rule 28(1), the administrator's oath must be worded so as to clear off everyone with a prior right to the grant. In practice that means a person ahead of you in the order renounces (formally steps back from the role) or consents, and the application shows how their prior interest was cleared off. Where people in the same class disagree, rule 5(3) lets the Probate Officer choose between them.

When the only person entitled is under 18

A child under 18 cannot take out the grant themselves. The Courts Service puts it plainly: in intestacy cases, where the person entitled to apply for the grant is under 18, a guardian must be appointed to extract the grant of representation on their behalf, and a Probate Officer's order is required. To “extract” a grant is simply to take it out.

Order 79, rule 24 of the Rules of the Superior Courts is the enabling provision: “A grant of administration may be made to a guardian of an infant for the infant's use.” In plain terms, an adult holds the office of administrator, but holds it for the child. The grant is a job done on the child's behalf, not a transfer of the child's share.

Are you already the child's guardian?

This matters because it decides whether you need a separate Probate Officer's order appointing you. Rule 25 requires a guardian to be assigned by order only where the child has no testamentary guardian (a guardian named in a parent's will) and no guardian appointed by the court or under the Guardianship of Infants Act 1964.

Under Section 6 of the Guardianship of Infants Act 1964, on the death of one parent the surviving parent is a guardian of the child — alone, or jointly with any guardian appointed by the parent who died or by the court. A surviving parent is therefore usually a guardian already, rather than someone who has to be appointed one.

An unmarried father is in a different position. Under Section 6B he is an automatic guardian only where he and the mother have been cohabitants for at least 12 consecutive months. That period must fall after Section 6B came into operation. It must also include at least three consecutive months after the birth, during which both parents lived with the child.

If those conditions are not met, guardianship has to be sorted out before the probate question is even reached. That is one of several ways the position of an unmarried partner when someone dies without a will differs from a spouse's.

One caution before you rely on this. The Courts Service's own Probate Orders page states the trigger more narrowly than rule 25 does — it describes an order as needed where the person entitled has no testamentary guardian and no guardian appointed by the court, leaving out the Guardianship of Infants Act 1964 limb. The Probate Office may therefore still look for an order. Confirm your own position with them before assuming none is needed.

Can you apply yourself, or do you need a solicitor?

The Courts Service allows personal applications, where you deal with the Probate Office directly instead of instructing a solicitor. It also publishes a list of situations in which a solicitor must be used. One of those is: “The person applying is under 18 years of age.”

That entry refers to the age of the person making the application. Where a child is the person entitled and an adult guardian takes the grant for the child's use, the applicant is the adult. But the Courts Service does not expressly say whether that removes the solicitor requirement. The Probate Office is the only body that can confirm the position for your application.

Two other entries on the same list are worth checking against your own situation. A solicitor must be used where the person entitled to apply is a Ward of Court, or lacks the capacity to make their own decisions. A Ward of Court is someone the court had taken responsibility for because they could not manage their own affairs. Wardship is now being wound down: the Assisted Decision-Making (Capacity) Act 2015 commenced on 26 April 2023, and no new adult wardship applications are accepted. So for most readers, the live part of that entry is capacity.

The other entry catches people abroad. A solicitor must be used where the person intending to apply does not live in the Republic of Ireland and there are beneficiaries, other than the spouse of the person who died, who will inherit €20,000 or more. A surviving parent living abroad whose child inherits €20,000 or more is caught by it.

Holding the grant does not make the money yours

This is the point that most often catches surviving parents out, and it is worth stating plainly. Taking out the grant for a child's use makes you responsible for the estate. It does not make the child's share yours to spend. The share is held on the statutory trust that arises under Sections 57 and 58 of the Succession Act 1965 — the money stays the child's until they turn 18.

There are two separate roles, and they are easy to blur. Guardianship is a role about the child, granted under the Guardianship of Infants Act 1964. Trusteeship is a role about the money, arising under Section 57 of the Succession Act 1965. One person can hold both, but the duties attached to each are different.

Section 57(1) sets out how trustees of a child's share are put in place. Where a child is entitled to a share and there are no trustees able and willing to act, the personal representatives may appoint a trust corporation (a company authorised to act as a trustee), or any two or more persons, to be trustees of that share. If no appointment is made, the personal representatives are the trustees themselves.

Should you get professional help?

The basic children's share is clear. Several situations still make advice worthwhile:

• A guardian has to be appointed to extract the grant for a child under 18.
• A trust must be set up for a minor's share.
• Parentage needs to be established.
• The family home forms part of the estate.
• The value of a child's share may exceed the CAT threshold.
• A civil partner survives and a Section 67A(3) application is being considered — that one carries a six-month deadline.

A solicitor experienced in intestate estates can confirm each child's entitlement, obtain any Probate Officer's order that is needed, manage the Grant of Administration, and put the right trust arrangements in place for any minor. A tax advisor can check whether CAT arises for any child and whether reliefs such as the dwelling house exemption apply.

If you'd rather talk it through first, you can start with our free assessment to understand what the estate needs, or call us on (01) 578 1570 if you'd prefer to speak to someone. There's no obligation either way.