If no valid will of movable property has been prepared by the testator then the administration and distribution of the movable property is dealt with under Intestacy. This has its own separate procedure and this information is set out in Part 6.
If the property is immovable property this needs no executor because from the date of death to the date the property is registered the property “vests” in the heirs of the deceased. On registration of the property in the Public Registry, the property title passes to the beneficiary/ies automatically.
If a valid Will of movable property has been left by the testator then the administration and distribution of the movable property is dealt with by an appointed Executor under Grant of Probate. This is more particularly set out in Part 5. An Executor is responsible for carrying out the wishes of the person who has died and sorting out the estate. They will have to collect together all the assets, deal with all paperwork, pay any debts, taxes, funeral and other costs out of the estate.
The executor may be named in the Will of movable property. If the executor is not named, or dies before appointment or for some other reason there is no named executor, then the Court will make the appointment (Executor Dative)
Who to choose as executor
An appointed executor must be 18 years or over.
It is usual for the deceased to have named a person(s) in his Will to act as executor. 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.
– trust companies.
Who you choose and how many executors will very much depend on the facts and circumstances of your particular case.
It is important to choose executors with considerable care since their job can involve a great deal of work and responsibility. You should always approach anyone you are thinking of appointing as an executor to see if they will agree to take on the responsibility.
It is often convenient to appoint a beneficiary of the Will as an executor as they will have a direct interest in getting the job done quickly. If someone is appointed who is not willing to be an executor, they have the right to refuse appointment.
If there is more than one executor it is useful that each knows of the other executor, and how to contact them in the event of the death. The wording of the Will regarding executors is important. If more than one executor is appointed “jointly” all executors must apply for probate (unless they opt to renounce). If the appointment is “joint or severally” one or all can apply for probate.
Relatives and friends
A married partner is often made executor of a person’s will particularly if there are no grown-up children. This is useful, since the partner is likely to have a major interest in the Will. But note that if the surviving spouse is now divorced at the time of death, then unless the Will says otherwise, the spouse is not entitled to take under the Will or become executor (A16, Wills and Succession Law) .
A gift can be left in the Will as compensation for their effort as relatives and friends are otherwise entitled only to claim from the estate for expenses.
The advantage of choosing friends or relatives as executors is to avoid the costs which professional executors charge such as lawyers or banks.
In all cases it is helpful to appoint more than one executor or an alternative executor in case one of them dies or refuses to act.
Lawyers or accountants
If the movable property is complex or of high value, you may wish to appoint a lawyer or accountant to be an executor, and a clause should be included in the Will so that the professional fees for the administration can be charged to the estate. You should ask the lawyer or accountant at the outset what the fees are likely to be for acting as executor.
Trust Companies (It is not possible to appoint a bank as executor of a Will.)
A trust company may agree to be appointed as an executor of a Will in accordance with the Probate Law (A11). This could be helpful if the family is likely to be in dispute, or if the Will is particularly complex. A trust company is impartial, experienced in investment and trust management, and is, of course, certain to survive the person making the Will. The disadvantages of using a trust company are the impersonal nature of the relationship – for example, concerning the funeral arrangements, and the often very high costs that may be involved.
The basic charge for acting as an executor is usually a percentage of the gross value of the estate. The different trust companies operate different scales, and one may be better than another depending on the size of the estate. The trust companies also have different minimum charges. It is advisable to get estimates and scales of charges from the trust companies concerned before appointing a trust company as an executor.
No named executor in the Will
If the Will is silent as to a named executor, then the surviving spouse shall be entitled to a Grant as Executor Dative (A14 Probate Law). If however the surviving spouse was not residing with the spouse at date of death and had deserted the deceased without cause (or Judicial Separation) then the heirs at law under customary law would be entitled to a Grant again as executor dative. The executor dative would be appointed by the Registrar of Probate subject to certain conditions.
Death of a named executor
If an executor dies and there are other surviving named executors identified in the Will then these executors can be appointed to deal with the estate.
If a named executor dies before the decease and there are no other named executors, then the position is as for no named executor above.
A named executor does not wish to act
A named executor cannot just refuse to act. They would have to renounce the duty formally in writing and file with the Registrar of Probate. If no alternative executor had been named in the Will, the Registrar of Probate would appoint an “Executor Dative”.
If the executor(s) wishes for a lawyer to act on their behalf
A person entitled to a Grant of Probate may nominate a lawyer to act in stead (A12 Probate Law). The grant is then made to the Lawyer.
Getting the executor appointed.
The Executor should make a first appointment to attend upon the Registrar of Probate:
– to provide details of the value of the estate and any debts owed.
– to make sure that the correct documents and information are available.
– to produce the original Will.
– to pay stamp duty.
– to swear the Oath of Executor, promising honestly to distribute the estate of the deceased.
The applicant will be given guidance notes by the Registrar of Probate at the Judicial Greffe as how to administer the estate.
The Grant of Probate
Usually Grants of Probate are available from the Judicial Greffe within 5 working days of swearing the oath (if there are no fees possibly the same or next day). The document bears a Royal Court Seal and is attached to a copy of the Will signed by the Executor which should not be removed. The Grant of Probate is valid only within the jurisdiction of the Royal Court of Jersey.
Disagreements between executor and beneficiary – “Caveat”
Beneficiaries who feel an estate has been wrongly or badly administered should seek guidance from the Registrar of Probate , or get legal advice (Legal aid is a possibility). A “Caveat” may be obtained and placed on the estate to prevent the administration of the estate going ahead. To lift a Caveat an action must be heard before the Royal Court unless an agreement between the parties can be reached. Complaints against an Executor who is a lawyer should be directed to the Registrar of Probate as they have sworn an oath as Executor in the Royal Court.