Probate & Administration


The passing of someone you care about is undoubtedly emotionally challenging and dealing with the intricacies associated with his/her estate is often a demanding endeavor. There are numerous legal procedures involved with the administration and division of the property of an estate.

In Jamaica, inheritance issues are dealt with by either the Supreme Court or the Resident Magistrate’s Court. The Resident Magistrate’s Court handles inheritance matters where the value of the deceased’s estate does not exceed 1.5 million dollars and the Supreme Court handles other matters. The probate process and estate administration ought to advance smoothly and without problems, provided that the goals of a decedent are plainly expressed and legally sound. But very often the process could be delayed and lead to discord and litigation in a variety of situations.  In addition the Court process can also be very burdensome for those faced with these fiduciary responsibilities, however, we here at the Law Office of Patrick O. Forrester, P.C. will steer you through this process smoothly and successfully.

PROBATE

Probate is the legal process whereby a person’s Will (wishes) is effected after his/her death so that the gifts of the will can be distributed to the beneficiaries.  In Jamaica, this process is done either in the Resident Magistrate Court or the Supreme Court, depending on the size of the estate.  If the value of the estate exceeds $1,500,000.00 the application to probate the Will is done in the Supreme Court. Where the value of the estate does not exceed $1,500,000.00 application to probate the Will is filed in the Resident Magistrate’s Court where the deceased had his last fixed place of residence.

Where the Will is established as the legitimate Last Will and Testament of the deceased (the person who died), jurisdiction is acquired over all interested persons who are provided a chance to oppose the Will before its admission to Probate and the individual designated in the Will as the Executor is appointed to carry out the wishes of the deceased.  

Specifically, the process involves gathering information on the assets of the deceased, creating an inventory, paying the estate debts including funeral and burial expenses, paying creditors, distributing remaining estate assets to the heirs and beneficiaries in accordance with the Will, preparing an accounting of the assets and expenditures, and closing the case.

Not all assets of the estate are considered part of the probate estate and as such those assets are not subject to the legal process.  Assets not subject to the probate process are referred to as non-probate assets and we say they by-pass the Will. Examples of non-probate assets include the following:

  • Property and other assets owned in joint tenancy with rights of survivorship;
  • Retirement plans, annuities, life insurance, and other assets that have designated beneficiaries;
  • Property and assets that are held in a trust;

If the decedent died without a Will, an Administration proceeding will be filed instead of a Probate.  

 

ADMINISTRATION - Intestate Proceeding

When a person dies without a will, then he or she is said to have died “intestate.” When one dies intestate, the laws of intestacy apply and dictate how the assets of the estate are distributed.  People usually don’t want the State deciding how to distribute their assets after they die, it is therefore advisable to hire an attorney to help with an Estate Plan (will, trust, and related documents) that will keep you in control of what happens to your estate after you pass.  Since a Will was not made here, an application must be made to the Court by one or more eligible distributee (beneficiary) of the estate for a “grant” of Letters of Administration.  Of importance to note here is, that where the Will is determined by the Court to be “invalid” the laws of intestacy applies.  Also note that sometimes there is a valid Will but not all of the decedent’s assets are included in the Will.  When this happens the assets not included in the will are subject to the laws of intestacy. The distribution of those assets is considered a partial intestacy.

Whenever the laws of intestacy apply, a determination has to be made concerning who are the distributees and ruling out people who are not. Upon completion of the Administration process, the court names an Administrator having identical authority and rights as an Executor (an executor is the person who would have the authority if there was a will). This legal document entrusts the administrator with the administration of the estate of the deceased.

In Jamaica, this process is done either in the Supreme Court or the Resident Magistrate’s Court, depending on the size of the estate. If the value of the estate exceeds $1,500,000.00 the application for the Letters of Administration will be done in the Supreme Court. Where the value of the estate does not exceed $1,500,000.00 applications are filed in the Resident Magistrate’s Court where the deceased had his last fixed place of residence.

Usually, one or more of the beneficiaries of the estate make the application for the Letters of Administration.  It makes for a much smoother process when the beneficiaries get along and there is no obstruction of the process.  If there is there may have to be an application seeking an Order from the Courts for the appointment of an appropriate person to take charge of the estate.  All administrators and executors are entitled to a commission of 6% from the estate for their services, which is paid before the distribution of the assets to the beneficiaries as well as Attorney’s fees.

A Certificate of the Administrator-General must be obtained, prior to making the application for a Grant in the Court. In order to obtain the Certificate of the Administrator-General, the applicant is required to:

  1. Submit a completed a Form of Particulars, sworn to before a Justice of the Peace; and
  2. A  certified copy of the Death Certificate; and
  3. A copy of the Oath of Administrator prepared by the applicant's Attorney; and
  4. The consent of person(s) who have a prior right to apply for the Grant. and
  5. A J$2,000.00 fee for the Oath of Administrator.

Note that if the consent of one or more Beneficiaries equally entitled to the estate cannot be obtained the Beneficiary making the application is required to submit proof that the others were served with notice of the applicant's intention to apply for the Grant.

Common law Spouses

Where the applicant is claiming to be a beneficiary of the estate because of a common-law union with the deceased, he/she must obtain an Order from the Supreme Court declaring he/she the spouse of the deceased.  The Intestates' Estates and Property Charges Act (the "IEPCA") defines "spouse" to include, a single woman who had lived and cohabited with the deceased who was a single man as if they were married for a period not less than five years immediately prior to his death; and likewise a single man having lived and cohabited with the deceased who was a single woman as if they were married for a period not less than five years immediately prior to his death. Only one person may be regarded as the spouse under this law. 

Children

Where there is a child who is entitled to share in the deceased’s estate, the Administrator-General stands in loco parentis (as parent) to protect the child’s interest and is required to administer the estate until the child is at least 18 years old.  The administration of the estate will continue until such time.  A Court Order may also be issued for the appointment of someone to act in place of the Administrator-General.

Once the Grant of Letters of Administration is obtained, the personal representative is required to deal with the assets of the estate in accordance with the principles outlined in the IEPCA.  The administrator collects the assets of the estate by sending the original or a certified copy of the grant of the Letters of Administration to every institution or person holding assets or titles to assets for the deceased requesting that they be released to the Administrator.  The Administrator must also gather the debts of the deceased and in doing so it is mandatory that an advertisement be placed in the newspaper informing of the death and inviting creditors of the estate to come forward and substantiate their claim within 6 weeks after the publication of the advertisement.  It may be necessary for the Administrator to sell some of the property of the estate to pay debts if there isn’t enough cash.

After debts are paid and funeral expenses are taken care of the residue of the estate can be distributed.  The IEPCA sets out the manner in which each class of beneficiaries would share in the residuary estate at the distribution stage of the administration process. The residuary estate is that portion of the estate which remains to be distributed after payment of funeral and administration expenses, debts and other liabilities.  Transfer tax in the amount of 1.5% is to be settled prior to the sale or transfer of assets which it is applicable to.  However where the property was the principal place of residence for the deceased and the applicant at the time of the death of the deceased or the matrimonial home where the spouse is the applicant there is an exemption.
 

TABLE OF DISTRIBUTION
Where the deceased died leaving the following class of persons, the residuary estate is passed to the beneficiaries in the stated proportions:

Spouse, children & parents

½ to Spouse ½ to children in equal shares If only 1 child, 23 to the spouse 13 to the Child. (Parents do not share in the estate)

Children & parents only

children take absolutely in equal shares (Parents do not share in the estate)

Spouse & parents only

23 to spouse & 13 to parents (in equal share if both alive)

Parents survive, but no spouse

Parents take absolutely in equal shares. or children Single surviving parent takes absolutely.

If no spouse, children or parent

the class of persons next in line in the following table will take in equal share in the following order to the exclusion of those in the lower classes:

 

  1. Brothers and sisters of the whole blood
  2. Brothers and sisters of the half blood
  3. Grandparents
  4. Uncles and aunts of the whole blood
  5. Uncles and aunts of the half blood
  6. The Crown (as Bona Vacantia)

The estate administration can be tedious and sometimes daunting, however, at the Law Office of Patrick O. Forrester, P.C. our goal is to help you administer the estate effectively.

Patrick O. Forrester P. C. at (718) 325-5500  or (876) 906-8317 for a consultation today.