A pivotal starting point in the administration of an estate is confirming the authority of an executor. An executor is appointed this role in the last will and testament of the deceased, and it becomes actionable on the death of a testator.

It is well established that an executor derives his power and authority from the will of the deceased. The case of Chetty v Chetty confirms this and states, “It is quite clear an executor derives his title and authority from the will of his testator and not from any grant of probate.”

Once an executor accepts his position he should be able to fulfil his duties, which include identifying, collecting and preserving the assets of the estate; payment of estate taxes and debts; and the distribution of gifts in accordance with the deceased’s will. However, when it comes to the distribution of assets an executor’s ability to action same may be limited as oftentimes formal recognition of the executor’s authority is required. This formal recognition is done through the legal process of probate, which culminates in the executor obtaining a grant of probate in the deceased’s estate from the court.

Two circumstances in which an executor’s ability to act will be limited include:

1) Transfer of monetary gifts; and

2) Transfer of real property.

Transfer of Monetary Gifts

It is common for a will to specify monetary gifts to designated beneficiaries. Over time, the likelihood of fraud in this area of estate administration has prompted significant concern for financial institutions holding assets of the deceased — especially when the deceased’s assets are substantial and sensitive personal information is involved.

In response, many institutions have implemented rigorous safeguards to protect against fraudulent activities, including requiring a grant of probate, presentation of certified photo IDs, authorisation letters, among other detailed verification processes.

Transfer of Real Estate

Where an estate consists of real property to be transferred to named beneficiaries, executors will be unable to action any such dealing without a grant of probate. An executor can, however, enter into a contract for the sale of real property prior to obtaining a grant of probate, but cannot complete the sale or transfer of the property to the named purchaser until after the grant of probate is issued.

The Registration of Titles Act requires that an executor who wants to effect any dealing with registered land belonging to the deceased must apply to be registered on transmission on the certificate of title. Such registration will involve proving, to the registrar’s satisfaction, the authority of the executor, which will include presenting the grant of probate, confirmation that estate duties have been settled and, in some cases, presentation of a valid, government-issued photo ID.

The registration of the executor on transmission will confirm the executor’s authority to act in relation to that specific property and place him in a position to deal with the property in accordance with the deceased’s will — whether that is to transfer the property to the named beneficiary or the purchaser of such property.

It is pertinent for executors to engage the services of an attorney who can carefully guide them through the process of administering the estate and ensuring the wishes of the deceased are carried out in accordance with the law.

Kandi Chin is an associate at Myers, Fletcher & Gordon, and is a member of the firm’s property & estates department. Kandi may be contacted via kandi.chin@mfg.com.jm or www.myersfletcher.com . This article is for general information purposes only and does not constitute legal advice.