5. Wills and Succession – Application for Grant of Probate
If the Testator leaves no valid Will on death then the administration and distribution of the estate is dealt with on Intestacy. See Part 6 for more detail.
If the Testator leaves Immovable property, there is a separate procedure for immovable property to devolve on its ultimate beneficiary. See Part 4.
If the Testator dies leaving a valid Will of movable property, the administration and ultimate distribution of the estate is undertaken by an appointed Executor under a “Grant of Probate”. It is necessary to make an application to the Registrar of Probate at the Judicial Greffe and for an executor to be appointed. The detail of appointing an executor is set out in Part 7.
From that set out below it is necessary to obtain a Grant of Probate even when the movable estate is likely to be small or in debt. The only exception is small estates (under £10,000) where the deceased is not domiciled in Jersey.
If you intermeddle with the estate before obtaining a grant of probate, you may be committing a criminal offence.
It is likely that in order to take possession of the assets of the estate you will be required to produce the Grant of Probate to the institution holding funds in the name of the decease.
Making the Application
An appointed Executor must be 18 years or over.
The person(s) named in the Will as executor would usually make the application. Anyone can be appointed executor, including named beneficiaries of the Will. It is not necessary to appoint more than one executor although it may be advisable. The most commonly used executors are:
-relatives and friends.
-lawyers or accountants.
Who you choose and how many executors will very much depend on the facts and circumstances of your particular case.
A6 of the Probate Law provides in summary:
– An application for a grant shall be made to the Judicial Greffe in the name of the Royal Court (Probate division) under the seal of the Probate division.
– An application may be made through an advocate or solicitor or in person by persons claiming to be entitled to a grant.
– A grant shall have effect over the movable estate of the deceased person.
– A grant is not made until all reasonable enquiries have been made and answered and all parties who should be consulted have been consulted.
– Where a deceased person dies domiciled in a specified jurisdiction, the Judicial Greffier may make a grant with such supportive evidence as shall be prescribed.
– no grant shall be made in any case where there is contention, until the contention is disposed of.
The Applicant should contact the Registrar of Probate and make a first appointment. You should bring the following documentation with you if possible:
– The original Death Certificate (original means not a photocopy)
– The original Will and any Codicils.
– Photographic ID – Yours passport or driving licence.
– Letter from Social Security confirming how much death grant was paid
Value of Assets
An asset is something of worth or value that the person owned in his sole name at the date of death. In order to get information from the financial institutions ( Banks, Trust Companies, Building Societies etc) give them a copy of the death certificate. However they may refuse to provide you with the information absent a grant of probate.
An example of some Assets are listed below:
– Bank Statement at date of death or a letter from the financial institution telling you how much was held in the account at this time.
– A statement from the Co-op share account or Post office account.
– Information about any shares or bonds held.
– The value of any car and other such items.
– Valuation of any jewellery of great worth and not sentimental value.
– Insurance policy bonuses
– Where a property is owned by share transfer, the shares form part of a person’s movable estate.
It is possible for an estimate to be made, and the amount of stamp duty paid will be adjusted when the correct valuation is available later.
At this stage any valuables or items requiring care, for instance a car, jewellery etc should be removed to a place of safety by the person entitled to the Grant to make sure that the deceases’ property is secure.
Value of Debts
Debts are money which needs to be paid out of the estate or money the person owed in his sole name as at the date of death. This includes things like the following:
– Outstanding medical fees.
– Nursing home fees.
– House hold bills etc.
– Outstanding utility bills such as gas, electricity etc.
– Funeral expenses.
– Income tax due.
If there are not enough assets or property to meet all the debts of the estate then you should take advice.
Please note, in some cases extra paperwork or Affidavits (which are sworn statements) may be needed but you will be told about this if necessary at the time of the Interview. Once all the documents have been approved a second appointment will be made for the paper work to be signed and for the Executor to swear the Oath. This is done in the Probate office on Monday-Thursday mornings. At the second appointment you will be told what the fees are and how to pay them. They issue the Grant when you pay the fees.
Stamp Duty and Fees
Although there are no death duties, estate duties or capital transfer tax in Jersey, it is necessary to pay revenue stamps to the Judicial Greffe when the Oath of Executor is sworn. The amount to be paid is calculated on a sliding scale dependent on the net value of the movable estate in the world i.e. the total asset value less the total debt sum.
All revenue stamp duty and fees will need to be paid before the Grant is given. Personal application fees are:
– Professional application fee of 80.00
– Personal application fee of ￡200.00
Scale of Movable Estate
|VALUE OF DECEASES’
|Less than £10,000
|Between £10,000 and £100,000
|£50 per £10,000 (or part thereof)
|More than £100,000
|£500 for first £100,000 then £75 for each additional £10,000 (or part thereof)
How to pay the revenue stamp duty
There may be a problem where the only funds available to pay the stamp duty are held in an account which will not be unfrozen until probate has been obtained. The Executor may ask beneficiaries or heirs to pay for the stamps due on what they are to inherit, or the bank may be prepared to loan money against the estate to help settle this and other outstanding bills before probate. The revenue stamps are bought at the States Treasury in Customer and Local Services, La Motte Street, and taken to the Judicial Greffe.
No intermeddling without a Grant of Probate
Article 23 of the Probate (Jersey) Law, 1998 provides that if you take
“possession of or in any way administers any part of the movable estate of a deceased person without obtaining a grant, the person shall be guilty of an offence and liable to a fine or to imprisonment for a term not exceeding 12 months or to both.”
It further states:
“No person shall be guilty of an offence by reason only of the fact that the person has made arrangements for disposing of the body of the deceased person in any manner authorized by law or custom or from placing in safe custody or otherwise preserving the movable estate of the deceased”.
Therefore personal belongings of the deceased of no material value such as old clothes/furnishings can be given to charity but you may not sell, give away or otherwise dispose of any other assets until the Grant has been issued. Similarly you should not undertake any steps involving the estate until appointed.
Death of a person not domiciled in Jersey – access to assets
If you are domiciled out of Jersey, Article 19(2) of the Probate (Jersey) Law 1998 states that a Jersey Grant of probate is not required if, at the date of death, the value of the Jersey assets are less than ￡10,000. However, some institutions may insist on a Jersey Grant being obtained.
Investments outside Jersey
Many people own shares in non-Jersey companies. Probate may have to be obtained in each and every foreign jurisdiction where the deceased held shares.
Probate following a Grant.
The Grant of Probate provides the executor with the necessary authority to gather the assets of the deceased. Taking possession of chattels such as furniture and personal effects should be fairly simple. Cashing in investments may not be so straightforward.
It is advisable for the executor to open a bank account in the name of the estate through which funds can be handled. If the estate consists of investments which may take time to realise, then an account which offers reasonable interest rates during the interim should be opened. Income tax will be payable on interest accrued from the estate.
The Executor should contact the bank(s) where investments and funds are held, enclosing the Grant of Probate and asking that the funds be surrendered and/or transferred to the account of the estate.
The death grant payable by Social Security can be claimed by the executor and used towards the funeral and other expenses of the estate.
If the deceased owned shares in a Jersey company, the company secretary should be contacted and shown the probate documents and the share certificates in the deceases’ name so that the shares can eventually be re-registered in the name of the beneficiary.
In the case of share transfer property, a copy of the death certificate should be lodged with the Company Secretary who will then issue a new certificate in the survivor’s name.
Once all the assets are gathered in, the Executor can pay all the debts owed by the deceased and arising from the estate, e.g. funeral expenses, Executor’s expenses, income tax liabilities.
The Grant of Probate must be sent to the Comptroller of Income Tax together with an income tax return for the portion of the year that elapsed prior to the date of death. The deceases’ tax liability for this period is then calculated, giving the normal allowances.
The estate is also liable for income tax, at the standard rate of 20p in the pound, on any interest that arises, and any other income acquired during the period between the date of death and final distribution of the estate.
Distributing the Estate
It is essential that the executor should keep written records of all assets collected, debts paid, tax due, and legacies paid out of the estate. In the event of the executor’s role being challenged by a beneficiary or the Court it would be impossible for them to defend themselves without records being available. It is also helpful to be able to show relatives/friends of the deceased who may feel aggrieved if they receive less than they expected from the estate, just how the estate was administered.
The cost of administering the movable estate shall be paid out of the gross movable estate (A15 Will and Succession Law).
When all the debts are paid and the assets brought in, the executor may then distribute the estate in accordance with the Will. Legacies will fall into five categories:
1 Specific Legacies. Gift of a specified part of the deceases’ estate. For example, “my diamond wedding ring”. If they do not exist at the date of death then the bequest falls away.
2 Demonstrative Legacies. Gift of a general nature payable from a particular fund (e.g. gift of ￡1000 payable from my Gold account at Lloyds Bank).
3 General Legacies. Gift of a specific item to be acquired form the general estate (e.g. gift of a Rolex watch type ….). It requires the executor to go out and to purchase the item.
4 Pecuniary Legacies. Gift of money (e.g. ￡1000 to Fred Bloggs).
5 Residuary Legacies. Gift of all that remains after paying debts and distributing gifts. (e.g. the rest of my residuary estate to Mary White).
The residue is the last dealt with. If residue fails, then this falls under Intestacy. It has no where else to go.
Where there is insufficient funds to meet all the legacies and in a particular order, then this engages the rules on abatement. Legacies abate according to their type. Residuary legacies abate first. Specific legacies abate last.
Where there is to be a division of the assets, to include chattels, it is useful if the Executor has had such items valued so that a fair distribution can be made. Chattels may have to be auctioned to allow for their value in cash to be equally shared.
Use of an inheritance within a year and a day
The beneficiary must wait a year and a day from the date of probate before they can make use of the inheritance in case the Will is contested, but this period may be waived by agreement between all parties, and this is the norm. The executor may require a simple indemnity to be signed by the beneficiary if a distribution is made before the year and a day has expired.