One of the most common questions asked of an attorney is “how can I” deal with what Jamaicans colloquially refer to as “dead lef” or inherited property left under a will. In an attempt to demystify the process, the steps involved in winding up the estate follow, with the responsible person stated in brackets and a brief note on what this entails:

* Gathering the deceased’s documents and property, including the original will, any bank books or statements, titles to land and share certificates (executor):

Before the client comes into the office (provided he is not a walk-in client), the attorney should inform him of the essential documents needed to begin the process which are, in the main, the above.

* Approaching an attorney to begin drafting the documents for court, the oath of executor and the grant of probate (executor):

When approached by the executor, the first order of business is to inspect the documents, most importantly the will. Key among the several clauses in the will shall be who the executors are and whether there is a residuary clause.

* Drafting the oath of executor and grant of probate (attorney).

* Delivering the will, death certificate, share certificates and title to land to the attorney (executor):

These should all be original documents. In the case of lost share certificates, an indemnity will have to be executed between the executor and the share registrar and a lost title application in the case of a lost title to land.

* Executing oath of executor and marking the will and death certificate relative to the oath (executor):

If the executor is based overseas, then the formalities for the notary public and/or the Jamaican ambassador/consul must be observed, that is that their seal is affixed to the document when they witness the executor’s signature. A special note should be made that for Canadian-based and UK-based persons the notary need only affix his seal. This is also the case with the Jamaican ambassador/consul, wherever they may be. However, if you are getting a notary to witness the document from certain states in the USA they will require a notary public certificate of term of office from the secretary of state for that particular state (Florida, Pennsylvania and California come readily to mind). In other states such as New York you need only get certification of the notary’s term of office from the local county court. In Jamaica, of course, such execution of documents should be witnessed by a justice of the peace.

* Stamping the oath and grant with the requisite stamp duty (attorney).

* Submitting the oath, grant of probate, death certificate and will to the court (attorney).

* Drafting letters to the various share registrars to give permission to the attorney to obtain written information as to the quantum and value of the shares held by the testator as at the date of her death as well as her history of shareholding (executor).

* Drafting letter to the various share registrars to obtain written information as to the quantum and value of the shares held by the testator as well as information regarding the history of the shareholding of the testator (attorney):

Where the estate consists of shares these two processes are critical. The letter you will receive from the share registrar in response to the attorney’s letter will form the basis of the stamp office’s assessment of the transfer tax liability of the estate for these shares.

* Valuation of real estate (executor):

A valuation from a reputable realtor can go a long way in expediting your matter through the stamp office when it comes time for assessment, as the commissioner could use the private valuation from a reputable and registered realtor as a proxy for their own valuation.

* Drafting the revenue affidavit to obtain an assessment of the transfer tax on death payable (attorney):

Great care must go into the drafting of this document. You will need to ensure that the value given to the part of the estate which attracts transfer tax, namely the real estate and shareholding in companies, is properly enumerated. Further, local funeral expenses should be enumerated as the transfer tax is assessed on the market value of the estate as at the date of death of the testator less reasonable funeral expenses.

* Executing the revenue affidavit (executor)

* Submitting the revenue affidavit to the Tax Office (attorney):

If there is a proper valuation of realty and letters from share registrars you are looking at a quicker return of the assessment of the liability of the estate as opposed to if you do not have these readily available.

* Obtaining the transfer tax assessment from the Tax Office (attorney):

Once received it must be immediately communicated to the client, especially where interest is accruing on the tax where the application is being made more than a year outside of the death of the testator.

* Paying the transfer tax (executor):

The executor can either put up the money for the tax himself, can seek the assistance of the ultimate beneficiaries to front the money or he can present the stamp office with an agreement for the sale of the property and he, along with the attorney representing the estate, can give an undertaking to the stamp office to remit the transfer tax owing out of the proceeds of sale.

* Obtaining the Transfer Tax Certificate from the Tax Office (attorney):

The Transfer Tax Certificate, styled the Form 8 in relation to real estate, is a critical step in the process, as without it the property cannot be properly transferred (hence the term transfer tax). You will have to present the Form 8 along with a properly executed Transmission Application and/or Assent to Devise (in the case of realty) for the latter to be cross-stamped with the payment of taxes. That is to say that the actual Titles Office application will be affixed with a certification by the stamp commissioner that no taxes are owing for the property to be transferred.

* Obtaining the grant of probate from the court and advertising for creditors (attorney):

An inspection of the Grant should take place upon receipt. The next step is to have an advertisement placed in the newspaper for creditors of the deceased to come forth and claim against the estate before the assets are distributed according to the terms of the will. The absence of this advertisement can form the basis of a challenge against the executor personally for dereliction of duty by a creditor and if the assets are distributed in the absence of the advertisement for creditors there will always be the spectre of court action hanging over the estate.

* Distribute estate:

The executor, to limit his liability to beneficiaries and creditors, should, at this juncture, file an account with the Court. This account will then be sent to parties who should have notice of same, namely the beneficiaries but also creditors if necessary. The registrar will then sit with the persons so notified and shall hear evidence from them if they have a dispute with the accounting. Once the registrar makes a determination as to the authenticity, then her decision is final and the parties so notified of the sealing of the accounts.

Robert Collie is an associate at Myers Fletcher & Gordon and is a member of the firm’s Property and Probate Department. Robert may be contacted at robert.collie@mfg.com.jm or through www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.