Executor missing, estate distribution in limbo

Dear Mrs Macaulay,

My ex died after a brief illness, but he made a will before he died and he told me that he had left a house in Portmore for me in his will. He told me the name of the executor and of the other beneficiaries in the will. He died in July of last year.

Since his death I have not heard a word from anyone. I have the title and keys for the dwelling which he gave me prior to his death. The yard is overgrown with shrubs and grass. I had it cut since his death, but it is in dire need of cutting again. The executor’s number is out of service, and I am afraid that some underhand business might be going on.

I would appreciate your advice.

The executor ought to have contacted you as one of the beneficiaries of the deceased’s will, if indeed he or she had accepted the duty of being the executor. You express concern that some underhand business might be going on, but you really do not know this for a fact. You see, the person named as executor has a right to renounce that appointment. This might have happened, or the person might be ill.

The first thing you should do is go to this person’s home and take someone with you if you are nervous about doing so, assuming that you have the address. If you find the named executor, ask what is happening about the probate of your ex’s will. This is your right.

If you cannot make contact at the home or you do not know the actual street address, you must then go to the Supreme Court Registry and ask for the probate section. Make a request that they search the records to see whether your ex’s will has been probated. If it has been granted, ask for a photocopy of the executor’s oath and the probate with the will attached. You will have to pay for the copy. You will have to give the clerk your ex’s full name to enable him or her to conduct the search.

If you obtain the copies I have stated, you will be able to get the executor’s address from the oath. At that point you could go there and enquire why the executor has not contacted you personally, as I suggested earlier, or you could retain the services of a lawyer to act for you. However, before you do this, you should also check at the parish court of the parish where the deceased resided or where the named executor resides to find out if probate was applied for in that court. If the search effected by the clerk is successful, then ask for the copies of the documents I suggested.

If you retain a lawyer to act for you, these searches can be done more easily and quickly. The lawyer can also write to the executor on your behalf and point out that as executor it is his or her legal duty to contact you and to proceed to settle the estate by settling the property to you as quickly as possible.

The lawyer can also add in the letter that if the executor fails to act, an application will be filed in the court for orders to be made for him or her to report to the court what they have done since the grant of probate to settle the estate, why they have not made contact with you, whether he or she has made contact with the other beneficiaries, and for orders mandating him or her to undertake the legal processes necessary to effect the transfer of the title of the premises to your sole name.

If neither search bears fruit, then you will have to concentrate on finding the executor and making contact and getting him or her to act. If he or she refuses to act, you can apply to the court to appoint another person to act instead of the named executor. As a beneficiary, you have the right to make this application and the former which I mentioned earlier. This also must be done through a lawyer who will act as your buffer and be readily available to proceed with an application to the court if any underhand business is in fact going on as you suspect, or if the executor cannot be found.

I wish you all the best.

I also wish for you and all my readers a happy, fruitful, safe, healthy, blessed and prosperous 2018.

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.