MANY people in an attempt to provide for the financial well-being of their family on their death try and amass as much wealth as possible during their lifetime. We must bear in mind, however, that it’s not only the amount of wealth that you leave behind, what is important, is that those assets must be readily accessible for distribution to your next of kin. We need, therefore, to organise our affairs to facilitate this easy accessibility.

The first move you should make in this direction is to have a proper will drawn up for yourself. I would strongly suggest that you seek professional advice in this regard as there are a number of factors you need to be aware of when drafting a will. Some are basic and well known such as the will must be signed by you in the presence of two adult (over 18 years) witnesses and such witnesses must not be beneficiaries under the will or spouses of such beneficiaries. Others, however, are more involved and require professional input.

When drafting your will, you ought to appoint persons whom you wish to act as the executors of your estate.

For a number of reasons, you should think carefully when deciding upon an executor.

First of all, the person appointed by you as executor is not obliged under law to accept such appointment and may, if he/she wishes, renounce their appointment on your death, and refuse to apply for a grant of probate. It is important, therefore, to consult with the particular person before appointing him/her as executor.

Remember as well that the duties of an executor can often (depending upon the nature of the estate) be very time consuming and in some cases, fairly complex. They involve matters such as identifying and paying off debts, possibly even selling assets to raise cash, investing the funds of the estate, providing detailed reports to the beneficiaries and distributing the assets of the estate.

In addition to having a will drawn up for yourself, another important step to take in the organisation of your affairs, is to keep your executors or close relatives advised of the full extent of your assets or at least have a document listing same, that becomes available to them on your death.

In order for your executor to apply for probate of your will, he/she needs to have a proper inventory of the assets owned by you at the date of your death. If he has to spend a great deal of time trying to identify and locate the assets comprised in your estate, probate will be delayed.

Where a person dies without a will their property is distributed according to the laws of intestacy. This area is covered by the Intestates’ Estates and Property Charges Act and it sets out how the assets of the estate are to be divided among the deceased’s next of kin.

Under the law, the estate is divided as follows:

(i) $10,000.00 or 10 per cent of the net value of the estate, whichever is greater, goes to the surviving spouse, plus all personal chattels;

(ii) if the deceased died leaving one (1) child, then the surviving spouse will receive — of the residue of the estate and the child;

(iii) if there is more than one (1) child, the spouse receives — of the residue and the children, receive the other in equal shares;

(iv) if there are no children, the spouse receives — of the residue and the parents of the deceased receive the other; and

(v) if there are no children, and no parent surviving the deceased then the surviving spouse of the deceased become entitled to the entire estate.

The disadvantage here is that in distributing your assets, the Act does not take into account the individual financial circumstances/needs of the various family members. It simply provides for an arbitrary distribution of the property.

Another problem that arises with regard to intestacy is that there is an additional step that needs to be taken in the process of applying for the grant. Before anyone can apply to the court for a grant of letters of administration in the estate, the consent of the Administrator General must be obtained before the relevant application can be filed at the Supreme Court. This additional step is not required where there is a will.

Though having a will allows you to determine how your assets are to be distributed, your freedom to dispose of them as you like in your will is limited to some extent by The Inheritance (Provision for Family and Dependents) Act. Under this Act, certain persons have a right to challenge your will on the ground that it does not make reasonable financial provision for them.

These persons include:-

(vi) a wife, husband or common law spouse of the deceased;

(vii) a child under 18 years;

(viii) a child over 18 years who is physically or mentally disabled;

(ix) a child over 18 years but under 23 who is pursuing academic studies or trade instructions;

(x) a parent who was being maintained (wholly or partly) by the deceased immediately before his death;

(xi) a former spouse who was being maintained wholly or partly under an existing court order or agreement with the deceased immediately before his death.

The Act requires the court to consider a number of factors before deciding whether to interfere with your will and grant such an application. Nonetheless, it would be prudent for you to consider the provisions of this Act when drafting your will.

Having a will drawn up for yourself is therefore of utmost importance. It allows you to determine how you wish your assets to be distributed on your death and it also ensures that your estate will be administered much more expeditiously than if you were to die without one.

Natalie Farrell-Ross is a Partner at Myers, Fletcher & Gordon and is a member of the firm’s Property Department. Natalie may be contacted via Natalie.farrell.ross@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.