Where there’s no will…

DEAR MRS MACAULAY,

A parent died intestate with the understanding that her property should be shared equally between her children. Some have since passed on. Does their portion go to their estates (children) or does everything go to the remaining survivors?

You have not stated whose understanding this was or is. Was it the deceased parent’s? If so, how was the understanding made clear? Or was it her children’s understanding?

In any event, an intestate’s estate properties must be distributed as the law provides. If a parent intends that their property is to be divided strictly as they wish, then they should make a will and direct in it all their clear gifts to named beneficiaries, with one or more executors appointed to faithfully ensure that the gifts and directions are scrupulously effected.

When a person dies intestate, this means that they have not made a will directing how their estate properties are to be distributed, but that they have left their properties to be distributed as directed by law. This is what the parent you have referred to did. Her property, which she owned at her death and which she left intestate, remains so, until her next of kin decide who would apply to the court for Letters of Administration to be able to legally administer the property and distribute such pursuant to the Table of Distribution as it appears in the Intestates’ Estates and Property Charges Act. If the intestate’s property only consists of personal property, then distribution of these to surviving next of kin is quite straightforward, as far as such actions can be, and in the sense that no legal documents are necessary for such items to be shared among the surviving next of kin.

If the intestate’s property is real property, and she was the registered owner of it, the application by one or two of the children must be made for them to be appointed as administrators to enable them to do all that is necessary to legally deal with the real estate property and take all necessary steps to legally pass the property to those entitled in law according to the above stated Act to share in the property. I am dealing with this matter as simply as I can, as that it does not sound so complicated as to be impossible to be resolved.

So if the deceased parent has no surviving spouse, then her whole estate would go to her surviving children. It must be remembered that a surviving spouse could be a common-law spouse (but a court must determine that the person is indeed a common-law spouse). I am assuming that there is no spouse and so when the deceased died intestate leaving surviving children, these children or “issue” in the Act, would be entitled to share her residuary estate equally among them.

The Act speaks of “surviving” spouse, child or parent(s), so therefore it is clear that in order to share in the intestate’s property following her death, only those issue/children who were alive at her death would have a share in her property. It also however provides clearly in another section that when a child predeceases the intestate, and who has a child or children who are alive at the time of the death of the deceased, that child or children are entitled to have their deceased parent’s share. But this does not seem to be the case here, as you say that some of her children have since passed on. They clearly survived her and so they were legally entitled to their share and when they died, their share would go to their estates and then on to their beneficiaries. Each child or their estates must get their equal shares. So, for example, if the mother had six children and two died after her death, but before her estate was settled and distributed, then her property must be divided into six, and the shares of each one of the deceased children should go to their estates.

After the administrator(s) have obtained the Letters of Administration, they must apply to be registered on the title on transmission, so that they can legally deal with the property as would be necessary to effect the shares, which may be by way of a sale of the property and sharing the net proceeds or effecting rentals of it and distributing the income. It would be a situation wherein the prospective administrator(s) would need to retain the services of a lawyer.

I hope that I have assisted you to understand the process and the legal requirement which apply to an intestate’s estate.

All the very 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.