Setting up a trust

Dear Mrs Macaulay,

I live in the UK and have a property in Jamaica. I would like to leave my estate in Jamaica to my grandchildren who also live in the UK and are minors. The Property Title Deed is in my name only.

I have considered putting their names on the Title Deed of the property. My enquiries have led me to believe that it is likely to cost me approximately J$300,000 to $400,000 to do so.

I could potentially leave the property in trust to my grandchildren; however, I have no information on this option.

Which one of these options is likely to be less costly? Is it best to be in Jamaica to carry out the changes to the Title Deed or deal with setting up the trust? Is UK law compatible with Jamaica law in these areas? Could a UK solicitor carry out the legal work in setting up the trust?

Thank you for your letter. I am very happy to note that you are taking steps to settle entitlement to your property during your lifetime. This is always a very good thing to do, either by joining the names of your donees on the title as joint owners, or by way of a device in your last will and testament.

I note that you have made some enquiries about what it may cost for you to include your grandchildren as joint owners with you in the title of your property. I cannot say for certain if the figures you quote are correct, because this would depend on the value of the property from which the value of the portion being transferred to the grandchildren would be ascertained. With this value ascertained, the total taxes and registration fee due can be worked out and the value of the percentage of the attorney-at-law’s costs. Additionally, remember that Government may change the percentages due for taxes and the registration fee at any budget as it determines necessary.

You could also in your will give the property to your grandchildren jointly or as tenants-in-common and set up a trust for the executor/trustee if you die while they are or any of them is in their minority, to manage it for them. You would need to also make provision for the trustee(s) to manage the trust property for them and upon the attainment of their majority, for the distribution. It would be impossible or at least very difficult for you to determine the level of funds which you ought to make available to the executor/trustee for what they would have to do. Remember also that the executor(s) would be entitled to six per cent of the value of your estate as commission.

What then would I suggest? I would strongly suggest that you effect the joining of your grandchildren as proprietors during your lifetime. You see, you will be in control of the entire process of making them legal proprietors with you of the property. You should add them as joint tenants with you in the title. Since they are minors, the Registrar of Titles will place a caveat on the title to protect their interests therein during their minority, even from you. If you wish, for instance, to borrow money on the security of the property, you would have to convince the registrar that this would not adversely affect their interest and that the loan is for a very good reason.

When they attain their majority and the registrar is informed and provided with proof of the fact, the caveat will be removed. In my view, this is the safest and most straightforward way of ensuring that your grandchildren own the property as you wish them to do

You ask whether UK law is compatible with Jamaican law in these areas. The short answer is that it is not. Our land law is based on the Torrens System and English land law is based (or was when I was a student there) on the 1925 Law of Property Act. The Torrens System is quite different and operates on a system of registration governed by the Registration of Titles Act.

You also ask if a UK solicitor can do the work whether for the trust for the management of the property or its transfer to your grandchildren. I think not, because of the different land laws of the two areas. Such a course would only cause confusion and unnecessary expense to correct any errors.

I really think you should add them now to the title with you as joint tenants on the consideration of ‘love and affection’ and be done with it. In this way, after your demise, the process of having the title fully in their names is simply to have your death noted on the title, because on death interest in the property passes by operation of law to the surviving joint tenants. There is no need for administration of any estate. If, however, you join them as tenants-in-common, then on your demise your interest passes to your estate, which would have to be administered either as a testate or intestate estate.

I trust I have been sufficiently clear so that you can determine how best to conclude your plan.

Good luck.

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.