One of the most common questions asked of an attorney is ‘how can I’ deal with what Jamaicans colloquially refer to as ‘dead lef’ or inherited property left under a will. In an attempt to demystify the process the steps involved in winding up the estate follows, with the responsible person stated in brackets and a brief note on what this entails:
i. Gathering the deceased’s documents and property, including the original will, any bank books or statements, Titles to land and share certificates (Executor) – Before the client comes into the office (provided he is not a walk in client), the attorney should inform him of the essential documents needed to begin the process which are, in the main, the above.
ii. Approaching an Attorney to begin drafting the documents for court, the Oath of Executor and the Grant of Probate (Executor) – When approached by the executor the first order of business is to inspect the documents, most importantly the will. Key among the several clauses in the will shall be who the executors are and whether there is a residuary clause.
iii. Drafting the Oath of Executor and Grant of Probate (ATTORNEY).
iv. Delivering the Will, Death Certificate, Share Certificates and Title to land to the Attorney (Executor) – These should all be original documents. In the case of lost share certificates an indemnity will have to be executed between the executor and the share registrar and a lost title application in the case of a lost title to land./p>
v. Executing Oath of Executor and Marking the Will and Death Certificate Relative to the Oath (Executor) – If the executor is based overseas then the formalities for the Notary Public and/or the Jamaican Ambassador/Consul must be observed, that is that their seal is affixed to the document when they witness the executor’s signture. A special note should be made that for Canadian based and UK based persons the Notary need only affix his seal. This is also the case with the Jamaican Ambassador/ Consul, wherever they be. However, if you are getting a Notary to witness the document from certain States in the USA they will require a Notary Public Certificate of Term of Office from the Secretary of State for that particular state (Florida, Pennsylvania and California come readily to mind). In other states such as New York you need only get certification of the Notary’s term of office from the local county court. In Jamaica of course such execution of documents should be witnessed by a Justice of the Peace.
iv. Stamping the Oath and Grant with the requisite Stamp Duty (ATTORNEY).
v. Submitting the Oath, Grant of Probate, Death Certificate and Will to the Court (ATTORNEY).
vi. Drafting letters to the various share registrars to give permission to the attorney to obtain written information as to the quantum and value of the shares held by the testator as at the date of her death as well as her history of shareholding (Executor).
vii. Drafting letter to the various share registrars to obtain written information as to the quantum and value of the shares held by the testator as well as information regarding the history of the shareholding of the testator (ATTORNEY) – Where the estate consists of shares these two processes are critical. The letter you will receive from the share registrar in response to the attorney’s letter will form the basis of the Stamp Office’s assessment of the transfer tax liability of the estate for these shares.