Executor seeks answers about will

Dear Mrs Macaulay,

My aunt died on October 13, 2021. She made me the executor of her will. She left her home to her three children and myself. I would like to proceed with the probate by sending communications to each beneficiary re my intent to apply for letters of administration for probate because the children have been fighting amongst themselves.

What would be the best way to start? I have already drafted a letter to each of them and will be sending a copy of the will (each of them have seen the will already). Thank you for your time and assistance.

It is laudable that you are thinking of making your application for the grant of probate of your aunt’s will at this time. You say that you wish to inform the children of your intention to apply for “letters of administration for probate”. There is no such process known to the law or in fact. Letters of administration only apply to estates of deceased people who died intestate. This is, those who did not make and leave a last will and testament before their death. Their estates must be administered after their deaths by the administrator general (AG) or a next of kin (with the consent of the AG), for example, their spouse and/or eldest child applying for letters of administration to the Supreme Court or parish court of the appropriate parish of the deceased’s last residence, depending on the value of the estate’s properties and assets. If the deceased died leaving young children under the age of 18, the law directs that the AG must administer such estates and so that official must apply for those letters of administration and administer such estates for their best interests, ensuring that provision is made for their necessities and for the widow, widower, or those of common-law unions, which must be declared upon the surviving spouse’s application to the court.

Those who made and left a last will and testament are recognised in law as having died ‘testate’. That is to say, they left a legally valid will. Such a will must meet all the legal requirements necessary as directed in the Wills Act and in our jurisprudence of cases decided in our courts of law, which explain exactly what must be done for the subject will to be a valid one as the law specifies. Your aunt you say left her last will and testament, so she died testate. You must therefore now take steps to have your application for the grant of probate of her will to the appropriate court. As I said, this will also depend on the value of the whole estate properties and assets.

You have asked what would be the best way to start. So you must first make the correction to only refer to probate and not letters of administration. The estate should also have sufficient money to meet the entire costs for the grant of probate, payment of estate duty and stamp duties, legal fees for you settling the entitlements of each beneficiary on them, your executor’s commission and to meet your allowable expenses involved in the performance of your duties as executor until everything is settled as the will directs or as must be devised if there is some shortage in the actual estate as opposed to the content in the will.

You should, as a careful person, start by retaining a lawyer to assist you, first with your letter to the beneficiaries, which must be carefully drafted to include only that which they must be informed about and whatever may be required of them to do during your administering of the estate properties. They must be made to understand that they must not interfere with the premises or any of its contents until you settle the whole estate after the process of your application for probate has been granted. You are the trustee of the whole estate until you fully perform your duties and you must keep proper records and statements of accounts of all receipts and expenditures. Since the children are already “fighting” as you say, I assure you that it would be more effective if the letter is prepared by and sent under the hand of your lawyer, especially if they have to contribute to the costs of the entire process.

It may be the case that the premises must be sold, if there are no monetary assets to meet the necessary costs and payments as required by the will and the law, and then each beneficiary(including you), would have to receive their gifts from the net balance of the sale price, and this has to be done with the greatest of care. You definitely need a lawyer to assist you to get the legal requirements right and to channel a safe legal course for you with your aunt’s children, the other beneficiaries. The need for an attorney-at-law’s assistance is that the application for probate, dealing with the Tax Administration Department for the statutory duties/taxes and fees for the Registrar of Titles Office for registration on transmission and the assent to bequest, must be done correctly and are all legally technical, which a lay person could not manage himself/herself. I know some people think it would be a waste to get and pay a lawyer, but from my experience, it is far more costly when mistakes have been made and then a lawyer has to be brought in to correct the mess.

It is best to do the process, which involves several stages and legal documents to be prepared and filed in accordance with the law and legal regulatory rules. It is a complicated exercise. The legal representative will ensure that all legal requirements are met by you and that your duties as an executor are beyond question in the settling of your aunt’s estate. May her soul rest in peace.

I trust that I have assisted you to understand, at least a bit, the process and how the conduct of beneficiaries may cause or increase difficulties and fracture the relationships between members of a family, but it can be successfully managed with sufficient and proper care. All the best.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.

Margarette May Macaulay

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