Important Definitions Regarding Probate

For clarity, here are some definitions of some of the terms you may come across when discussing probate with a probate lawyer in Jamaica.

The Beneficiary

The beneficiary is the person to whom a gift is given under the will. There is usually more than one beneficiary in most wills.

Testator

As mentioned previously, this is simply the person who makes the will. Unfortunately, by the time the executor’s duty comes into play, this person is already deceased and is often times referred to by the probate lawyer as “ the deceased”.

The Executor

The executor is the person appointed by the maker of a will also called the testator  (male) or testatrix (female) as the person who will carry out their wishes by winding up the estate. The executor has a three-fold responsibility in winding up an estate (i) to collect the deceased’s assets (ii) to pay the debts and (iii) to divide the estate among the beneficiaries.

To complete the winding up of the estate, the executor will usually retain the services of a probate lawyer in Jamaica to apply to the court for a grant of probate. Probate in Jamaica is a process whereby a will is submitted to the court to determine its validity. The Supreme Court of Jamaica will examine and determine the validity of the will.

The Executor’s Responsibility

Upon the death of the testator, the executor assumes the position of the testator. The executor has the power to seize and take in hand anything that belonged to the testator/testatrix, pay or compromise debts, and commence proceedings in court. The executor can bring a lawsuit on half of the estate and this also means that a lawsuit can be brought against him.

It is typical and most probate lawyers in Jamaica will advise the testator to appoint two executors. While this is not a legal requirement it is the general practice. There is also no requirement that both executors need to be involved in the probate process. It is often more convenient for one executor to renounce his executorship and the other to apply for probate.

In cases where an executor fails, refuses, or is unable to apply for a grant of probate, any other person with an interest in the estate such as a beneficiary may make the application to prove the validity of the will. Where a beneficiary makes the application to prove the validity of a will, the application is called a grant of letters of administration with a will annexed.

Once the validity of the will is proven either by Grant of Prboate or by Letters of administration with wills annexed, the executor has to pay all the death duties (stamp duty and Transfer tax), if any.

There are times when the executor is faced with a challenging decision when carrying out his functions. For instance, there are insufficient funds to pay the debts of the estate, and the executor must impartially decide what assets need to be sold to pay those debts. Invariably, the asset which the executor is forced to sell was earmarked as a gift to beneficiaries.

Once all the death duties and outstanding debts are paid, the executor has to distribute the assets of the deceased Where there is a grant of letters of administration with the will annexed, the estate will be distributed by the provisions of the will.

The role of the executor is a significant one that requires trust and confidence so the process of choosing an executor should be carefully undertaken.

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Executor Dies before the Obtaining A grant of Probate or dies before the Testator  

Where the executor dies prior to obtaining a grant of probate or simply before the person who makes the will, this will not affect the administration of the estate of the deceased person if there is another executor named in the will who is still alive. The surviving executor will simply account for the absence of the deceased executor by stating that the said executor is deceased and exhibiting the death certificate of the deceased executor. In the event that all the executor or executors predeceased the testator or died before obtaining a grant of probate, one of the beneficiaries under the will may make an application for a Letters of Administration with Wills Annexed. The beneficiary may do so and prove that the executor or executors died before taking probate by exhibiting a copy of the death copy of the executors. Letters of administration can also be applied for by a representative of the deceased executor.  

Executor dies after obtaining the grant of probate

The other question is what if the executor dies after obtaining a grant of probate but before actually wining up the estate of the deceased. If the executor(s) under the will dies after the testator and after probate but before the actual winding up of the estate, the first thing to ascertain whether the deceased executor left behind a will in which he appointed at least one executor. The executor of the will of the deceased executor or a relative of the deceased executor can proceed to apply for a letters of administration with will Annexed.

The executor appointed under that deceased executor’s will then has the authority to complete the administration of the estate through what is known as the ‘chain of representation’. Similarly, where the executor dies without leaving a will or appointing an executor an application can be made for a Grant of Administration in the estate.

To avoid these delays, probate lawyers in Jamaica will advise their clients to appoint more than one executors under a will.

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Nobody likes the thought of death and so encouraging clients to make a Will can be difficult. In fact, a poll conducted by our probate lawyers online suggested that 95% of Jamaicans do not have a Will which means that most of us are leaving it up to the government to administer our estate. 

A Will is a document in which a person declares what he wants to be done with his property at the time of his death. Whenever a Will is made, it has no effect until the person who wrote it, known as the testator, dies. The testator can also revoke a Will at any time prior to her death.

Now Here is Why You Need One 

1. You get to decide how your estate will be divided

If you die without a Will (intestate), then you have no say in who gets what after you die. Your estate will be distributed in accordance with the laws of intestacy. The Intestate Estate and Property Charges Act has a table of distribution which it is safe to say, favours only spouses, children and other close blood relatives. Therefore if one has any intention of having a friend, a distant relative or a charity benefit from his estate, without a Will such wishes will never be materialized.

• You decide who will take care of your minor children.

Having a Will in place will also allow you to make an informed decision as to which relative should take care of your minor children.  Where there is no Will, the court may take it upon itself to appoint a guardian among your family members or one of your family members may apply for guardianship. However, whosoever the court decides on or whosoever decide to apply for guardianship may not be who you would have wanted.

•  To avoid a lengthy probate process.

Contrary to common belief, that probating a will can take a long time, the Administrator General’s Department that is responsible for probating a Will is overburden by the number of assets it has to deal with owing to the number of people who die intestate. Having a Will, however, speeds up the probate process and informs the court how you’d like your estate divided.

• You decide who will wind up the affairs of your estate. 

When you make a will, you get to decide who will wind up your estate by appointing executors. Because executors play the biggest role in the administration of your estate, you’ll want to be sure to appoint someone who is honest, trustworthy, and organized (which may or may not always be a family member). 

How Do I Get a Will

When you are ready to prepare a will, compile a list of your assets and debts. Be sure to include the contents of safe deposit boxes, items of sentimental value, family heirlooms and other assets that you wish to transfer to a particular person or entity. You should also compile a list of all of those who you wish to benefit from your will.

You must identify yourself as the testator or testatrix (female). You must appoint at least two executors who you will list in your will and who will tell where you are placing your will and who will have the responsibility of probating your Will.

You must also identify two witnesses person who you want to witness the will. You must note though not to allow anyone who will benefit under the will to be a witness as the Wills Act provides that the gift to any witnesses or their spouse will be void.  

It is also important that you adhere to the formalities required under the Section 6 of the Wills Act because making an invalid may have no effect at all. In that, your assets will fall under the rules of intestacy (dying without a will) and it is those rules that will determine who gets what, which of course may not be coherent with your wishes.

The formalities under section 6 of the Act requires that the Will is made in writing, signed by the testator or someone else on the testator’s instruction, in the presence of the testator and witness by two witnesses present at the same time.

If after you created a Will, you get married, you will need to make another because the wills act provides that any subsequent marriage of the testator will revoke the Will.

You must make sure to include all your assets in your Will. Therefore, it is highly recommended that you enlist the help of a probate lawyer. The assets that are not included in the Will fall on intestacy if there are no residuary clause.

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