How to probate a will in Jamaica?

Answered By Aneisha Dobson, Associate Writer

Losing a loved one is never an easy period for the family. Coupled with the feeling of grief, family members are left with the question, “What’s the next step to take?”

When the deceased has left behind valuable assets, it can make the grieving process even more confusing and problematic.

Although in some quarters, preparing a will is still tabooed, many Jamaican have now gotten past that and into the habit of leaving behind a will - which in a nutshell, simply stipulates who is in charge, and who gets what is left of assets.

This leads us right to the title question... How do you probate a will in Jamaica?

By the way, a ‘Probate’ simply means to examine and prove that the will is prepared in accordance to the Wills Act, essentially establishing the validity of the will.

I've attached a simple copy of a blank will in Jamaica for your review here.

Now, it should be noted that probating a will can be a tiring and tedious process but it is important to fulfill the your loved one’s last wish.

Guidelines For Probating A Will In Jamaica

Here are some guidelines and notes that will be sure to help to make the process smoother for you.

1. Before you can begin to probate a will, the reading of the original last will must take place in the presence of all those mentioned in the will.
   
   
2. The testator, the deceased person who wrote the will, would have appointed an executor(s) who will be responsible for managing the estate and distributing the assets to beneficiaries.
   
   To assist with the process, such as drafting an application, the executor would obtain legal representation from an attorney. The executor will be given the original will.
   
   The executor’s main duty is to collect and preserve the assets of the deceased. Therefore, documents such as: bank books or statements, titles to land and motor vehicles and share certificates, must be collected.
   
   In some cases, the executor is entitled to executor’s commission of 6% of the value of the estate, however the testator can detail in the will that no executor’s commission be charged to the estate.
   
   Nevertheless, the executor would be reimbursed for any provable expenses he incurred while performing his/her duties.
   
   Important Note:
   
   If the testator fails to mention an executor(s) in the will, then the testator’s next of kin can apply to becoming the administrator for the estate.
   
   
3. Once the executor is willing and ready to assume his duty, the next step is seeking the services of a lawyer. The executor will supply the lawyer with the necessary documents such as, the Will, Death Certificate, Titles, Share Certificate and other necessary documents.
   
   The lawyer will then draft “The Oath of Executor”, which is a document that outlines basic information of the deceased and the declaration that the executor will carry out his duties effectively.
   
   He will also draft the Grant of Probate. In certain circumstances other documents will be needed such as:
   
   
   
   
   • Affidavit of delay- This document is drafted when the executor fails to make the application for Grant of Probate within the stipulated time period. Application for Grant of Probate must be done within 3 years after the death of the testator.
     
     
   • Affidavit of proof of death- Where death certificate is unavailable or cannot be found, this document is done by someone who knew the deceased, attend the funeral and saw the body.
     
     
   • Affidavit of execution –This document is drafted when there are questions as to whether the will was executed properly in accordance to the Will Act and when there is no date. This is done by someone who witnessed the deceased signing the will.
     
     
   • Affidavit of plight and condition- This will be drafted when the will has been tattered and soiled. The affidavit will state the condition of the will when found.
     
     
   • Affidavit of handwriting - If the witnesses of the signing of the will cannot be found, then someone who was well acquainted with the deceased could sign an affidavit to verify that the signature is that of the deceased testator.
     
     Once all the necessary documents are gathered, the lawyer will fill the application to the court.
     
   
   
   
4. The grant of probate of the will can be filed in the Supreme Court or Resident Magistrate’s Court. Where the grant of probate is filed depends on the size and value of the estate.
   
   If the value of the estate is more than $1.5 million, then application is made to the Supreme Court. On the other hand, if the estate does not exceed $1.5 million then the application is filed at the Resident Magistrate’s Court.
   
   
5. Paying for the probate - A Stamp duty is paid for application of the probate at the Tax Administration Jamaica (TAJ).
   
   Additionally, the executor will present a Revenue Affidavit to the Stamp Duty and Administration Tax Division of Tax Administration Jamaica (TAJ).
   
   The Revenue Affidavit indicates the estate’s assets and their value. The TAJ uses this information to determine the transfer tax (also known as estate duty) and to determine if transfer tax is due in the estate.
   
   For instance, if you lived in the house the deceased willed to you, then you will not pay transfer tax because in essence, it is your home. However, if you didn’t live in the house, you would pay transfer tax. Get the drift?
   
   
6. When the court has granted the probate, the executor must advertise the death of the testator and invite creditors of the estate to come forward. Why?
   
   This advertisement is necessary to determine whether or not the testator died indebted to anybody. The creditor, who claims that the deceased owed him/ her money, can file against the estate so long as they can provide real proof.
   
   Claims are to be made within six weeks after publication of the advertisement.
   
   When all the valid claims have been covered, the remaining assets can now be distributed to their beneficiaries.
   
   Remember, the process of probating a will can be costly. Here are some significant fees that you will incur:
   
   
   
   • Stamp duty
     
   • Advertising fees
     
   • Transfer tax
     
   • Attorney fees
     
   
   

Remember when matters such as these arises, always seek the services of a lawyer. They will be able to properly guide you.

Hope this was of some help!

Regards.
AD



Sources:

1. Macaulay, M. M. (2013, December 12). How do I probate a will? Retrieved from Jamaica Observer: www.jamaicaobserver.com/magazines/AllWoman/How-do-I-probate-a-will
   
   
2. McGregor, S.-A. (2012, Sepetember 3). Jamaican Gleaner. Retrieved from Grant of Probate (Part 2): http://jamaica-gleaner.com/gleaner/20120903/flair/flair93.html
   
   
3. McGregor, S.-A. (2012, August 13). Role of the executor. Retrieved from Jamaica Gleaner: http://jamaica-gleaner.com/gleaner/20120813/flair/flair6.html
   
   
4. Patrick O. Forrester. (2018). Probate & Administration. Retrieved from Probate & Administration, P.C.: http://www.forrester-law.com/pages/content/15060
   
   
5. Sherman, F. (2018). How to Probate Wills in Jamaica. Retrieved from Legal Beagle: https://legalbeagle.com/7195849-probate-wills-jamaica.html
   

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