Intestacy occurs where an individual dies without leaving a Will. If an individual dies intestate and there are minor beneficiaries the Administrator-General is mandated by the Intestate’s Estates and Property Charges Act to administer the estate. Any person other than the Administrator-General who wishes to administer an estate of an individual who dies intestate where there are minor beneficiaries can only do so with an Order of the Court.
Once a report is received about persons who have died intestate leaving minor children in the form of completed Particulars required for the Administrator-General, the Administrator-General like other personal representatives will:
Investigate and confirm the assets of the deceased:
This involves the following:
Submitting requests to financial institutions/organizations/individuals for confirmation of funds/stocks/shares/debentures/investments being held for the deceased and the deceased’s former employers for confirmation of employee’s benefits including unpaid salary, vacation leave pay, gratuity and National Housing Trust contributions. Relevant documents needed with regards to cash assets/personalty are:
Where the deceased owned property securing the relevant documents with regards to ownership. Additionally information is ascertained as to whether there is any outstanding mortgage and if it was covered by insurance. Relevant documents to be obtained include:
For motor vehicles the Certificates of Title, Fitness and Registration is to be presented. If the motor vehicle was not used predominantly for commercial purposes it is transferable to the spouse as personal chattel.
The Administrator-General’s (Amendment) Act 2015, amended the Administrator-General’s Act and several other pieces of legislation including the Intestates’ Estates and Property Charges Act. Sections 53B, 53D(1), 53D(2), 53F(1), 53F(3), 53F(4) and 53G of the Intestates’ Estates and Property Charges Act gives the Administrator-General for Jamaica the authority to issue Instruments of Administration in Estates where an intestate dies leaving a minor beneficiary. This Instrument of Administration has the same effect as if a Grant of Representation had been issued by the Courts of Jamaica to the Administrator-General for Jamaica and allows the Administrator-General to collect, transfer, sell or otherwise deal with the assets of the deceased.
The grant of administration is the authorizing document issued by the Resident Magistrate’s Courts of Jamaica or the Supreme Court of Judicature of Jamaica that allows the Administrator-General to collect, transfer, sell or otherwise deal with the assets of the deceased. In order to make the application to the Court, the following must be in place:
Proof of the deceased’s death in the form of a certified copy of the Death Certificate or
an Affidavit in Proof of Death completed by a person who was acquainted with the deceased and attended the funeral.
Funds to stamp the documents to be lodged in the Court. If the value of the estate exceeds $3,000,000.00 the application for the Letters of Administration will be done in the Supreme Court. It costs $5,000.00 to stamp the Oath of Administrator. With regards to the stamping costs for Grant of Letters of Administration in the Supreme Court, a new “flat fee structure” came into effect on August 22, 2016 under the Supreme Court (Commercial Division) (Fees) Rules 2016 . The “flat fee structure” ranges between $5,000.00 and $25,000.00 and the amount assessed as payable is dependent on the value of the estate. Prior to this stamping cost for the Supreme Court was 3% of the net value of the estate. Under the 1999 amendment to the Administrator-General’s Act, pursuant to section 23A the Administrator-General is empowered to request the release of funds from institutions holding assets for the estate, prior to the grant of Administration, to meet the costs associated with the application or to assist beneficiaries.
Where the value of the estate does not exceed $1,500,000 applications for the Letters of Administration are filed in the Resident Magistrate’s Court where the deceased had his last fixed place of residence. The stamping cost is the Resident Magistrate’s Court is minimal.
Once the grant of Administration is issued by the relevant Court, the Administrator-General (like other administrators) has the following duties:
It should be pointed out that all administrators and executors are entitled to a commission of 6% from the estate for their services, which is also paid before the distribution of the assets to the beneficiaries as well as Attorney’s fees.
The Administrator-General forwards the original or certified copy of the grant of the Letters/Instrument of Administration /Distribution to every institution or person holding assets or titles to assets for the deceased and requests their release to him/her.
It is mandatory that an advertisement be placed in the newspaper inviting creditors of the estate to come forward and substantiate their claim before the expiration of 6 weeks after the publication of the advertisement. If claims are properly substantiated, for example the submission of original receipts, then the debts will be settled prior to the distribution of assets to the beneficiaries. If sufficient cash assets are not available to settle the claim and the deceased has any property, it may be necessary for the Administrator-General to invoke her power of sale and sell the property to meet these debts.
Of crucial importance are statutory debts. Once the assets of the deceased include real property, shares and stocks, these are subject to the payment of transfer tax on death. Effective May 16, 2011 transfer tax on death is 1.5% of the value of assets but allowance is made for funeral expenses and mortgage debts to be off set. Transfer tax is to be settled prior to the sale or transfer of assets which it is applicable to. Provisions are made for certain eligible classes or relatives to seek an exemption from transfer tax on land. This is done when the property was the principal place of residence for the deceased and the applicant at the time of the death of the deceased or the matrimonial home where the spouse is the applicant.
This duty is particularly applicable to the Administrator-General but also relates to Executors who may have been appointed trustee under the Will of the deceased of minor children. After the settlement of claims, the Administrator-General has this function before distribution simply because the estates under her purview contain minor beneficiaries, which preclude final distribution until the last minor attains majority. As such the Administrator-General has the additional duties to:In instances when the deceased was a majority shareholder in a company; it may be necessary for the Administrator-General to become registered as a shareholder in respect of the deceased shares, attend general meetings of the company and playing other roles deemed necessary in order to preserve the value of the shares for the beneficiaries.
When the last minor reaches 18 years old and attains his/her majority and all debts are settled then the estate is ready to be wound up. Before this is done the Administrator-General will require proof of relation and this can take the form of certified copies of Birth Certificates, Marriage Certificates, Paternity Orders, Spouseship Orders and Affiliation Orders. I WANT TO …prove my relationship
At this stage of distribution, a final statement of account will be produced detailing all income and expenditure, arriving at the amount due to each beneficiary as per their entitlement under the Intestates Estates and Property Charges Act ( Please see table of distribution below). A Method of Payment Form outlining the various options that payment can be made to a beneficiary will also be prepared. Once the beneficiaries sign the Statement of Account signifying his/her approval of its contents and the Method of Payment Form, payment is prepared and tendered to the beneficiary in accordance with the manner indicated for disbursement, for example by way bank draft to overseas beneficiaries or cheque by way of registered mail for beneficiaries living in Jamaica.
Where the deceased died leaving the following class of persons, the residuary estate is passed to the beneficiaries in the stated proportions:
| Spouse, children and parents | ½ to Spouse ½ to children in equal shares If only 1 child, 2/3 to the spouse 1/3 to the Child. (Parents do not share in the estate) |
| Children and parents only | Children take absolutely in equal shares (Parents do not share in the estate) |
| Spouse and parents only | 2/3 to spouse & 1/3 to parents (in equal share if both alive) |
| Parents survive, but no spouse | Parents take absolutely in equal shares. or children Single surviving parent takes absolutely. |
For the purpose of succession, a spouse includes an unmarried person who cohabited with the deceased for a period of not less than five (5) years immediately before the date of his/her death. The spouse will also need to obtain a Declaration from the Court stating that he/she is the deceased spouse. Additionally, the spouse is also entitled to all personal chattels absolutely (provided they were not being used by the deceased in the course of his business). Personal chattels include, inter alia, motor vehicles, jewelry, painting and furniture. The spouse is further entitled to $10,000.00 or 1/10 of the net estate (whichever is greater), as an absolute interest , with interest thereon at a rate of 10% until paid.