It's risky business neglecting an estate
Legal NotesWednesday, June 16, 2021
With Antwan Cotterell
If your loved one has died leaving land for you, delaying the administration of their estate may create/increase the risk of losing the asset. The longer you wait, the more complicated and expensive the process of administering the estate can become, especially where the estate land is supposed to be divided between other family members.
In simple terms, administering an estate means making the appropriate application to the courts for the appointment of a representative to deal with the assets of the estate. For example, an executor ought to apply to the court for a Grant of Probate where your loved one died with a will and depending on what the will instructs, may thereafter transfer property to you and the other beneficiaries (if any), or sell it and divide the proceeds appropriately. Where there is a delay in making the application, particularly if the delay is for several years, the following risks may arise (this list is not exhaustive):
• Losing the land to an adverse possessor
It is quite possible for an individual to successfully claim that they have adversely possessed land that was in the name of someone who died and is in fact one of the more popular circumstances. For instance, when a landowner dies, it is common for several years to go by without anyone checking on the land thereby creating an opportunity for another individual to attempt to take it. Oftentimes the land might have been left unchecked because the family or executors were unaware that they needed to legally administer the estate. In these circumstances, it might become quite easy for someone who has no permission to be on the land to exercise possession over it for 12 years then make an application to the Registrar of Titles to become the lawful owner.
Additionally, it is not uncommon for fraudsters to skip the 12-year wait and claim ownership of the land. If a fraudulent adverse possessor sells the land to someone who was unaware of the fraud, that person is deemed to be a bona fide purchaser for value without notice which means you would be prevented from ever recovering the land. If the land was not sold, trying to recover it from someone claiming adverse possession has its nuances which includes bringing the matter before the court which is often quite costly and time-consuming.
• Complicating the process
The longer you wait to bring the appropriate application to administer an estate, the more complicated the application process can become. For example, if your grandparents owned parcels of land and your parents did not administer their estates after their death and then your parents died, you may be left with the responsibility of administering all their estates. This could involve several different types of applications depending on the type of ownership and would have to be done in a specific order. Potentially, it could take years before the land could be transferred to you or the other beneficiaries. This can become an expensive process as not only will you have to pay legal fees, but potentially also significant death duties to the Government in relation to the land as interest would have accrued. Time, effort, and money could have been saved if the appropriate applications were made as soon as possible.
• Disagreements over family land
Family members arguing or fighting over land has always been a part of Jamaican culture. Just a few months ago, we were all shocked by the news report that a sister and a niece allegedly hired an assassin to kill their relative over a family squabble over land. This is an unfortunate and extreme example of how contentious disagreements over land can become and is often over land left by a family member who has died “dead lef”. This unfortunate reality makes it even more imperative to have the estate administered through the court and with the help of an attorney in order to provide objectivity, decorum and finality to how the asset ought to be dealt with. This in turn can potentially help promote civil behaviour amongst disagreeing family members.
MITIGATING THE RISK
There are a few measures that can be employed to mitigate the risks discussed above as well as other risks that arise from a delay in administering an estate:
• Inform your attorney of the death and request that the estate be administered as soon as possible
Three of the more common forms of applications to formalise an estate are:
1. An application for a Grant of Probate as mentioned above. Where the deceased died with a will (or died “testate”) this application is made by the Executor(s) named in the will.
2. An application for a Grant of Administration. If the person died without a will (or died “intestate”), this application can be made by the beneficiaries who are entitled under the law to apply.
3. An application to Reseal Grant. If a Grant is issued by a court of another country, the representative appointed may apply to have the Grant sealed by the Jamaican court in order to administer the assets in Jamaica.
Once the court issues the Grant, the representative will step into the shoes of the deceased and can deal with their assets in accordance with the will or in accordance with the law in the case of an intestacy. You will need to seek advice from an attorney on which application is appropriate in your circumstances.
PROTECT THE LAND AS BEST AS POSSIBLE
1. Consider lodging a caveat against the land to protect your interest. Your attorney would be able to guide this process and lodge the caveat for you.
2. Visit the land or have a representative visit on your behalf as often as possible to ensure it is secure and there are no squatters.
3. Pay the property taxes which can be done online.
4. Build a fence and erect signs.
Conduct legal due diligence
If you have been away from the property for a significant period, you can ask your attorney to conduct legal due diligence on the property and advise you on its legal status and the steps necessary to secure it.
Antwan Cotterell is an associate at Myers, Fletcher & Gordon in the Property Department. He can be contacted via Antwan.firstname.lastname@example.org or myersfletcher.com. This article is for informational purposes only and does not constitute legal advice.
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