THE media have been littered with examples of atrocious crimes committed by relatives fighting over “dead lef” when a property owner dies without leaving a will. And even if there is a will, the lengthy and costly process of distributing the assets can be daunting. An inter vivos transfer — passing on your property while you’re still alive — is one way to avoid a lot of the headache and expense.

“The benefit that you have of doing the inter vivos is that you save significantly on these taxes, and duties, and costs that may become payable or applicable after death,” explained attorney Christine Nunes.

She is lead counsel at Christine Nunes Law Suite, and for the last year she has mainly focused on real estate, estate planning, as well as probate and administration of estates.

“Our minister of justice loves to speak about getting wills, and I am for that. However, estate planning is more than just getting wills,” Nunes told the Jamaica Observer.

“For example my mother only has one daughter, and instead of leaving her property to me in her will and when she dies I have to go through the court to get that probated, mommy — based on the dynamic that she has with me — could go ahead and just add me on title from now,” she explained.

In explaining the benefits of transfers done while the property owner is still alive, Nunes outlined some of the steps and fees associated with transfers made after death.

“Let’s say mommy didn’t add me on title; she left it in her will to me. I would have to go through the court to get that grant of probate. And then if the property is over $10 million I have to pay the Government death duties to have that transferred to me. Plus, depending on the value, lawyers can charge up to five per cent of the value of the estate. If it is that you have an executor, he or she is entitled to commission under their specific legislation. All of that is [eating] into the value of the estate,” she noted.

Nunes also cited the significant difference in costs even if the property owner only transfers a portion of interest in the property while still alive.

“Let’s say mommy only added me with a half interest. Once she dies, all I need to do is note her death — which is a significantly lower cost than if I have to go through the court to probate her estate. It’s $1,000 registration fee at the titles office [if you do it without hiring a lawyer],” she told Sunday Observer.

The process involves completing a note of death application on National Land Agency’s (NLA) website.

In addition to preserving the value of the estate and minimising expense, an inter vivos transfer can also unlock other economic benefits.

“You can use it for financing in terms of the collateral and the equity that you’re building up in the property as well,” said Nunes.

However, she stressed that inter vivos transfers are not a solution for everyone and should not be entered into lightly. She believes it is important to have frank discussions before the option is pursued.

“The same child that you raise can change. Once you transfer that interest to them, they have complete control. You can’t say, ‘Oh, I only give you because,’ ” Nunes cautioned.

She explained that someone who benefits from an inter vivos transfer can sell the property, even if the original owner is still alive. And while the original owner has to agree and sign off on the sale, it can get tricky if there is a dispute.

“If it is that [the original owner] refuses to sell, [the newly added person] could say, ‘Well, I need my interest, so you have to buy me out’… If the parent or the family member cannot buy out the interest then the court may have to do an order for sale — because if you can’t pay the person and they’re entitled to that interest, then you have to sell it for them to get it. And the reality is, if you sell it you might never be able to buy another property of that value,” said Nunes.

She also spoke of the importance of deciding just how much power the original owner is willing to give up. The options include making the individual or people added either joint tenants or tenants in common.

“With joint tenancies you have the right of survivorship. Everybody has an equal share. [When there are deaths] the last man takes all,” Nunes explained.

With tenants in common the parties can either have equal or unequal shares, and each of them can pass on their share to whomever they choose. It can get messy if one party did not do an inter vivos transfer or dies without making a will, even though the other owners had done so.

“That’s why you have to be mindful in terms of going on title. People don’t look that far ahead, but — especially in our Jamaican context — it has to be considered carefully. While it might be fine with three persons or two persons on title, I’ve assisted a senior attorney where one family had 10 children,” said Nunes.

She believes there is not enough public education in Jamaica about land issues.

“It hasn’t even started,” said the attorney whose professional social media feed offers useful information on all things real estate.

One of the topics she has highlighted is NLA’s Land Administration Management Division (LAMD). She completed a one-day LAMD certification session which means she can offer her clients who do inter vivos transfers even more benefits, such as those that come with a love and affection transfer.

“If a family member is transferring to another family member, once you’re able to prove that familial relationship then you benefit from a number of Government waivers,” said Nunes.

“Also, if the properties are in certain project areas and you want to note the death of a family member, the death duties will be waived. The Government makes it easier for persons to be able to deal with their properties; you’re saving [money] — and [many] people don’t know that this exists,” she added.