Procedures for probating a will

DEAR MRS MACAULAY,

My mother’s uncle passed away in Jamaica and is now buried. He left a will which she has with her in the USA, as she lives there. She would like to know what to do to get her name on the title, and what are the procedures she should follow. She is an elderly woman and would like to be protected.

Your letter is rather sparse with relevant facts. For instance, you have not stated whether your mother is named as the executrix in the will solely or with another executor. I assume that she is a beneficiary, as you state that she is elderly and wants to be protected. This suggests to me that she wishes to ensure her entitlement to the gift to her as stated in the will. Or, the protection could refer to the fact that she is the executrix named and is seeking to ensure that she obtains her executor’s commission of six per cent of the value of the estate.

Anyway, let me try to assist as best as I can in the circumstances. Your mother should first of all have a copy made of the will and keep the copy safely. Then, she must, with your assistance (I assume that you are an adult person), obtain the services of a lawyer here to apply for the will to be probated in the Supreme Court or in a parish court, depending on the value of the estate. Nothing can be done with any of the properties of the deceased referred to in the will, including lands, houses, bank accounts, motor vehicles, etc, without probate being granted to the person or persons named as executors in the will. These persons must agree to take on the responsibility of administering and settling the estate in accordance with the directives and gifts as stated in the will.

When she gets the lawyer, she should then send the original of the will either to you or directly to the lawyer, stating in writing that she is sending it for probate to be obtained. I say this, as for such processes, it is always advisable to keep a record in writing, simple and to the point, of each action taken and to or with whom.

If she is the sole beneficiary and remains in the USA, you may be required to be active in the process of the application for probate and in the administering of the estate. This would mean that you would have to sign a bond to produce an account of your administration to the Supreme Court, if and when required by the court to do so. The lawyer you help your mother to obtain should explain exactly what your mother and your obligation would be, and remember that when any original copy of a document is handed over, that you and/or your mother keep a copy for your records and that you obtain a receipt of the document from to whom it is sent or acknowledgement of their receipt of it.

You did not say where your mother’s uncle died. If it was in the USA, she must obtain one or two certified copies of his death certificate. She must send an original certified copy of it to Jamaica with the original will, with a note stating exactly what she is sending, and properly address it to the person they are being sent to. Again, she must keep a copy of this also.

Your mother should try to act as soon as she can. You see, probate should be sought within one year of the death of her uncle. You did not say when he died; but if he died some years ago, interest will be attached to the estate duty — the Tax Administration claims for estate duties. This is why it is better to act as soon as possible within a year of the death.

If more than a year has passed, then there would be a liability for interest on the estate tax due on the value of the estate, which must be paid to the tax office, and all taxes and stamp duties and the lawyers’ fee for obtaining the grant of probate must be paid up, in order to proceed to dealing with the assets of the estate and meeting the deceased’s uncle’s wishes as stated in his will. Remember, the court fees are paid to enable the filing of the application for probate. The lawyer retained would assist your mother, with or through you, to do all that is necessary, and she can sign whatever documents need her signature there in the USA, either before a Jamaican consul, which is the easiest and most direct, or a notary public.

I hope I have helped to clarify the procedures and steps for the will to be probated (despite the scarcity of facts in your letter), so that your mother can obtain her entitlement as soon as possible, because as you say, she is somewhat advanced in age.

I wish you both 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.