Why you need a willSunday, October 17, 2021
If you die without a will, in addition to the fact that your relatives may not benefit from cash and property that you leave behind, if relatives cannot be found, the other certainty is that what you leave behind will become the property of the state.
Making a will ensures that the people who matter to you will benefit from the assets you leave behind. In some cases, when a will is not made, it is the state which secures all your assets, and is able to sell the property left behind.
Even where relatives exist, the process of estate settlement takes many more years and a long process involving documents of proof, adding pain to the grief caused by the passing of the property owner. Hence the need to make a will so that property can flow to people you care about or even favourite charities, without this kind of stress.
In recent press notices, the administrator general (AG) which deals with settling estates, advertised for anyone knowing New York resident Ionie Simpson to come forward, failing which her estate would be declared bona vacantia and pass to the state.
Simpson, from Rochester, New York, was described as a spinster and of illegitimate birth. After a full 10 years of seeking her relatives, the AG, in press notices in Jamaica in the last month, stated that without any lawful claimants, the estate is being declared bona vacantia and will go to the Crown. Jamaicans who have died locally and abroad without writing a will and without known relatives will similarly have their property pass to the state.
The AG is required under the Intestates Estates and Property Charges Act (IPECA) to administer the estates of people who have died without a will leaving assets. If there are children under 18, the Act provides how the assets of the deceased are to be distributed to each proven beneficiary and in what proportion.
Where there are no lawful proven beneficiaries the estate may be declared bona vacantia. For people who die without a will leaving property, notices are placed in the press and those with legal claims are expected to respond within six weeks and produce documentation to support their claim.
As trustee of the assets being held on behalf of beneficiaries, the AG has a duty to ensure that assets are invested and properly managed. Cash assets are invested in the name of the AG in government guaranteed securities.
Estate properties are monitored and maintained by the department. This involves the renting of property and the payment of insurance and property taxes. Transfer of real property to beneficiaries or sale during the period of administration.
The process of administration continues until the last minor reaches 18 years old. The AG requires proof of the relationship of beneficiaries to the person who has died. Documents of proof include birth and marriage certificates as well as paternity orders, spouseship orders and affiliation orders from the court.
Where a person dies intestate (without making a will), and leaving no lawful heirs, his/her estate would normally fall to the Crown bona vacantia. However, if it can be proven that there are any other living persons with a legitimate claim to the deceased's estate, then failure of heirs may be presumed and the rights of the crown waived in favour of the petitioner.
This decision is made by the attorney general in accordance with the IPECA. The applicant/petitioner is required to submit a petition to the administrator general for a waiver of crown rights.
They must also produce documents to support their claim which include a statutory declaration (which may be obtained at the Administrator General's Department; letters of administration (also from the Administrator General's Department), a death certificate, and birth certificate or marriage certificate.