Probate Lawyers in Jamaica-The Role of an Executor Under the Law

Probate lawyers in Jamaica will tell you that the roles and duties of an executor are extensive and quite significant when it comes to winding estates. It is for this reason that most probate lawyers will encourage their clients to make a will and to carefully and cautiously appoint an executor. The executor is responsible for probating the will and distributing the assets to the beneficiaries by the will.

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.