Probate and Administration
Probate is the legal process used to carry out a person’s will after their death; a probate attorney advises you on how to perform the steps in the process. In general, once you have identified and collected the dead person’s belongings, including their money, property, and other assets, you pay the person’s debts and taxes.
Once all debts have been paid, you distribute their money and property according to the language of the will. If there is no will, the laws of the Country where the dead person lived control how the property is distributed. A probate attorney helps you plan what happens to your property when you die, as they can probate wills and act as your probate court estate representative. A probate attorney also represents family members and beneficiaries wishing to challenge wills.
A will is a written document which satisfies certain legal requirements of the Will Act and directs what assets of the testator or deceased goes to specific persons or organizations upon death, and is a part of proper estate planning. It is an effective tool in ensuring that your assets, which would have probably taken a while to amass, are transferred upon death in the way you prefer. It comes into operation after the testator has died. It can be as simple or as complex as you may wish.
The question of whether it is advisable for a foreigner to make a will in Jamaica depends upon the jurisdiction from which the foreigner comes. If the jurisdiction has the same formalities for making a will in Jamaica, then a local will need not be made in Jamaica.
The formalities for making a will in Jamaica are as follows:
- The Will must be in writing.
- The testator must sign at the foot or end of the Will in the presence of two witnesses who must be both present at the time he is affixing his signature to the Will and who themselves must also sign the Will below the signature of the testator.
- Beneficiaries should not be witnesses.
There are three main formalities in making a will and it is important that these are followed. If not, then this testamentary document will not be valid and the deceased’s estate might likely be distributed under Intestacy Laws.
While the formalities appear to be very basic, the will may be invalid if these are not followed.
The will must either be written in ink or in pencil although it is advisable that ink be used. It is advisable to avoid using both ink and pencil because this can lead to the belief that the testator (person making the will) was still undecided about whether the part written in pencil should be a permanent part of the document or was just deliberative. This can lead to complications after the death of the testator.
Interestingly enough, the law also provides for unwritten wills known as Privileged Wills. Privileged wills are wills made informally by a testator who has privileged status. Privileged status is granted to soldiers, mariners or seamen who are in “active military service”. Situations where privileged wills may occur is when a soldier, who is mortally wounded in combat, makes a statement or oral disposition of his property to another person before he dies.
Any mark made by the testator on the document validates the will provided that he intended it to be his signature and that this signature is meant to execute the will. So for example, if the testator is illiterate and uses his thumbprint to as his signature to execute the will, the will is valid.
Normally, the signature must be at the end of the page of the will. There are instances however, that the signature is not at the bottom of the page but on the side of the page because there may not be enough space for the signature. There may also be situations when the testator only gives a partial signature because she/he is weak to complete the signature. The will shall still be considered valid as long as the testator intended that the mark or the signature was meant to attest that this was his last will and testament. Where the signature is not complete or where questions arise as to the way the will was executed or made, external evidence (e.g. affidavit of due execution) must be given by the attesting witnesses or the attorney/legal assistant who attended to the execution of the will.
The witnesses must see the testator signing or executing the will. If even one of the two witnesses does not see the actual signing of the will, the will shall be considered invalid. It is, therefore, very important that the witnesses should be aware of and see the testator signing the document. It is not necessary for the witnesses to know the contents of the document. After attesting to and witnessing the signing of the will, the witnesses must attest the will by signing and acknowledging his signature in the presence of the testator.
The chosen witnesses should not be beneficiaries to the will. If any beneficiary witnesses the signing of the will, that person will lose whatever gifts or bequests she/he is entitled to under the Wills Act.
If a beneficiary witnesses the signing of the will, it does not make the will invalid.
The witness must be capable of attesting at the time the will was executed. A minor can witness a will but not a young child since he/she will not be capable of understanding the importance of witnessing the will’s execution. A blind person will not be an appropriate witness to the will’s execution. A person who is very drunk or of an unsound mind will also not be capable of attesting to the will.
If you die without leaving a valid will, the law would decide how your real estate and personal properties are distributed, which might go contrary to what you would have liked. This is called dying intestate.
While you can make your own will, it is usually advisable that you prepare one with the assistance of an attorney, since not preparing a proper one is like making none at all. Because there are certain formalities associated with writing a will, having legal advice is always best.
Also important too is that your will is practical. Leaving one car for your three children could, for example, result in some amount of conflict. Apart from physical assets, you will also need to specify things such as the appointment of guardianship over your children if they are minors.
In order for your will to be valid here is what you will need to do:
- Identify yourself as testator or testatrix. This is the person making the will. This person should be over 18 years of age and should be writing the will without any undue influence. Your will must state that it is your last and that it should revoke all previous wills that were executed before. It is important that you identify yourself by name.
- Appoint an executor. This person or institution will be responsible for distributing your assets upon death according to the instructions you have outlined in your will. This person must be honest, prudent and resourceful as they will be the only one with the authority to apply to the court for the probate of your will or give instructions as to the payment of your debts, such as those acquired during your funeral, for example.
- Do the math and ensure that your assets are divided up accurately. List the benefactors of your will and appropriate what percentage of your financial assets, for example, should be received by each. Also name an alternative executor in the event that your first choice dies or becomes incapacitated.
- Validate your will. In order for your will to be valid, you will need to, as the testator, sign it in the presence of two witnesses who are non-beneficiaries of your estate. The witnesses in turn will put their signatures on the will in the presence of you and each other. It doesn’t hurt to put your initials on all the pages of your will.
- Do checks. Go over the will to ensure that the names of everyone on it is legible.
- Put away the will in a safe place. Put your will in a safe place and tell only your elected executor where it is stored.