Probate lawyers will tell you that when a person dies without leaving a Will, one cannot simply grab what the deceased left behind. The deceased’s assets are not and should not be distributed on a first come first serve basis. Instead, the Administrator of the estate should apply for Letters of Administration before the assets can be distributed.

What You Should Know

When a person dies without leaving a Will, he is considered to have died intestate. The Intestate’s (Testate and Property Charges) Act is the piece of legislation that governs intestacy in Jamaica. The Act, also dictates how the deceased’s property will be administered. The obvious disadvantage here is that the decease will have no say in how his assets are distributed and to whom.  Instead, the Act will determine who gets what. For this reason, probate lawyers always encourage clients to execute a valid Will. It is always advisable to contact a probate lawyer to ensure that the Will is executed properly. A Will that is not executed properly will be of no effect and the estate will be treated as if the deceased had died without executing one. Also, sometimes a valid will exist, but not all the assets are included in the Will. In this case, those assets will fall on intestacy and the Intestate Estate and Property Charges Act will apply to those assets.

Where intestacy applies, an application is made to the court for a Grant of Letters of Administration for the deceased’s estate to be wound up and the assets distributed.

Who can Apply for Letters of Administration

Unlike the probate process, there is no appointed executor when applying for Letter of Administration. Therefore, the Act lays out an order of priority as to who has priority to make the application. The person who stands highest is the surviving spouse of the deceased. The spouse is either the surviving husband or wife or the surviving common-law husband or wife. A common-law spouse is a single woman who had lived and cohabited with a single man as if they were married, for five years or a single man having lived and cohabited with a single woman as if they were married for a period of five years or more.  It should be noted however that only one person may be regarded as the spouse under this law.

In the event that the surviving spouse does not wish to make the application or there is no surviving spouse, then the children of the deceased are next in line, followed by parents, siblings, grandparents, aunts and uncles in that order.

Jurisdiction of the Court to Hear The Application

An application for letters of Administration can either be done through the Resident Magistrate Court or the Supreme Court. If the net value of the estate is less than $1,500,000.00 the application will be made through the Resident Magistrate Court. However, the application will be made through the Supreme Court if the value of the estate is more than $1,500,000.00. The Administrator of the estate will need to hire a probate lawyer to make the application even though there is no prohibition on making the application without a probate lawyer.

The Probate Lawyer Makes the Application

To start the process, an application must be made to the Administrator General for a certificate. This certificate will indicate that the administrator is the appropriate person to administer the estate.

The probate lawyer will submit the following documents to the Administrator General’s Department in support of an application for the said certificate:

1.Particulars required for the Administrator General completed and signed before a Justice of the Peace.

2. Proof of death either a certified copy of death certificate or a sworn affidavit in proving death.

3. Oath of Administrator(s) for Letters of Administration prepared by the probate lawyer.

4. Consent of person entitled in priority, if the applicant does not have the prior right to apply. Note however that if the applicant has first right to apply, then there will be no need to obtain the consent of the others.

5. Proof of Relationship of the applicant to the deceased. Therefore, if the applicant is claiming to be the spouse of the deceased, a certified copy of the Marriage Certificate must be submitted. If this is not available, then a Perfected Court Order declaring the applicant to be a spouse of the deceased. On the other hand, where the applicant is claiming to be a child of the deceased, a certified copy of the Birth Certificate bearing the deceased’s name must be submitted. Where the deceased’s name is not on the birth certificate, then a Perfected Court Order declaring the person to be a child of the deceased in accordance with sections 7 and 10 of the Status of Children Act will suffice.

6. The application fee of $2,000.00.

The Administrator General Issuing The Certificate

The Administrator General will issue the certificate once all the requisite documents and information are submitted. Your probate lawyer will submit the relevant documents to the court for a Grant of Letters of Administration. Once the Grant is issued, the appointed administrator(s) will follow the normal process of administering the estate.

The Normal Course of Administration

After the Grant of Administration has been issued, the Administrator General will forward a certified copy of the Grant of Administration to every institution or person holding assets or titles for assets for the deceased. The Administrator General will also order theses persons or institution to release these assets and titles to her.  The Administrator General will then post an advertisement in the newspaper for creditors to come forward. The creditors will have six weeks after the advertisement is posted to come forward. Anyone claiming to be a creditor must substantially prove their claim. In the event where there are creditors, the Administrator General will settle these debts.

When There Are Minor Beneficiaries

Whenever minors stand to benefit under the administration of an estate, the Administrator General is barred from distributing the assets of the deceased until the minor attains the age of majority. In the interim, if the Administrator General will have the additional duty to:

• Maintain, insure and obtain rental income from real property.
• Invest funds prudently.
• Assist with educational, medical and other crucial expenses of the minor beneficiaries.

The Distribution of Assets

When the last minor attains the age of majority (18 years), the Administrator General can proceed to distribute the assets. The assets will be distributed in accordance with the Table of Distribution in The Intestate Estate and Property Charges Act. The assets are distributed according to relationship with the deceased so all persons who stand to benefit must submit documents evidencing their relationship with the deceased. Your probate lawyer would have collected these documents from the beginning of the process and check them. These documents will be submitted by the probate lawyer to the Administrator General.

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:

DISCLAIMER:
The above does not constitute legal advice