Ad­min­is­ter­ing a Ja­maican will from over­seas

Jamaica Gleaner - - FRONT PAGE - Oran A. Hall, prin­ci­pal au­thor of ‘The Handbook of Per­sonal Fi­nan­cial Plan­ning’, of­fers per­sonal fi­nan­cial plan­ning ad­vice and coun­sel. Email fin­viser.jm@gmail.com

QUES­TION: I have a query I would like you to ad­vise me on. If a will was com­pleted in Ja­maica, upon the death of the tes­ta­tor, how can the ex­ecu­tor, who is res­i­dent in the United King­dom, take pos­ses­sion of the es­tate in Ja­maica and make plans to sell the prop­erty, which has re­cently be­come va­cant?

- Ker­san­dra

FI­NAN­CIAL AD­VISER:

Liv­ing in the United King­dom does not hin­der the ex­ecu­tor from car­ry­ing out his func­tions. There are cer­tain steps which must be fol­lowed, and we will go through them.

First of all, the will has to be ad­mit­ted to pro­bate in the courts of Ja­maica, for which, it would be nec­es­sary to re­tain an at­tor­ney-at-law in Ja­maica. The at­tor­ney-at-law would then send the nec­es­sary doc­u­ments to the ex­ecu­tor for him to sign them.

The doc­u­ments would then be sent to the Stamp Of­fice for the as­sess­ment and pay­ment of trans­fer tax on death, which is 1.5 per cent of the value of the es­tate at the time of the death of the tes­ta­tor. No stamp duty is payable. Then, they would be sent to the Ti­tles Of­fice for the prop­erty to be trans­ferred to the ben­e­fi­cia­ries.

In a case in which the will was made in Eng­land or an­other Com­mon­wealth coun­try re­lat­ing only to prop­erty in Ja­maica, it would be pro­bated as if it was ex­e­cuted in Ja­maica. Such a will pro­bated in a Com­mon­wealth coun­try would have to be re­sealed in Ja­maica. An ap­pli­ca­tion to the Supreme Court of Ja­maica for re­seal­ing should be ac­com­pa­nied by a cer­ti­fied copy of the pro­bate and will.

SELL­ING PROP­ERTY

Steps can be taken to sell the prop­erty af­ter the tes­ta­tor’s death and the name of the ex­ecu­tor have been noted on the ti­tle at the Ti­tles Of­fice of the Na­tional Land Agency if the plan is to sell the prop­erty.

The ex­ecu­tor does not have to come to Ja­maica to carry out his func­tions. In fact, he can ap­point an agent by power of at­tor­ney to do what he would nor­mally do as ex­ecu­tor. Bear in mind that the ex­ecu­tor would do what the de­ceased per­son would nor­mally do if he was alive.

So the agent, act­ing for the ex­ecu­tor, would be able to col­lect rent, give no­tice to ten­ants, sell the prop­erty, and do much more.

Note that in ad­di­tion to prov­ing the va­lid­ity of the will in a court of law and en­sur­ing that the wishes of the tes­ta­tor as stated in the last will and tes­ta­ment are car­ried out sat­is­fac­to­rily, the ex­ecu­tor is also re­quired to en­sure that all of the tes­ta­tor’s debts are paid and that the residue of the es­tate is dis­trib­uted to the ben­e­fi­cia­ries.

Any per­son who is se­lected to act as the agent of the ex­ecu­tor should be com­pe­tent, have time to carry out the var­i­ous func­tions, and be trust­wor­thy.

If noth­ing has been done in re­gard to pro­bate, ac­tion should com­mence promptly by the ex­ecu­tor re­tain­ing a Ja­maican­based at­tor­ney-at-law, who will give the nec­es­sary guid­ance and pro­vide the re­quired ser­vices.

The ex­ecu­tor does not have to come to Ja­maica to carry out his func­tions. In fact, he can ap­point an agent by power of at­tor­ney to do what he would nor­mally do as ex­ecu­tor.

I

PER­SONAL FI­NAN­CIAL AD­VI­SOR

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