Dad died without leaving a will…
DEAR MRS MACAULAY,
I am writing to you from the United Kingdom and trying to establish a better understanding of Jamaica law surrounding dying intestate. My father died on 2/9/2021. He was a British national who decided to live in Jamaica and resided there for 10 years. He died intestate. I am his eldest daughter and his next of kin. I am struggling to find a lawyer and this is my first hurdle as I am in the UK. I’m not sure if this is a process I can do myself without a lawyer.
I would ideally like to have his title transferred to my name so I can take care of his house with an idea of renting it.
The meaning of ‘intestate’ in Black’s Law Dictionary is “to die without leaving a will”. A person is said to die intestate when he dies without making a will, or dies without leaving anything to testify what his wishes were with respect to the disposal of his property after his death. Under such circumstances, State law prescribes who will receive the decedent’s property. The laws of intestate succession generally favour the spouse, children and grandchildren, and then move to parents and grandparents and to brothers and sisters.
In Jamaica, the law which deals with intestate estates is the Intestates’ Estates and Property Charges Act. This Act defines “intestate” as including a person who leaves a will but dies intestate regarding some beneficial interest in his real or personal estate. This means that in addition to the dictionary, a person who leaves a will but leaves out of it some of his property, real or personal, would fall into the category of being ‘intestate’ in relation to the properties he failed to deal with in his will. Therefore, in order to be ‘testate’, after death, the person must leave a legally acceptable will of all his estate properties. The Act also specifies the persons who can have a share and proportions in the distribution of the intestate’s estate to them.
In your father’s case, he clearly died intestate, as he did not leave a will. You say that he died in Jamaica, where he had lived for 10 years preceding his death and that you are his eldest daughter and that means that you are the eldest of his next of kin, and you have assumed the responsibility to administer his estate. If he left a spouse, that person would be the first in line of his beneficiaries and who is entitled to apply to administer his estate. If he was not survived by a spouse, then you as the eldest child can, with the agreement of your siblings, apply to administer his estate. You must bear in mind that a spouse includes a common-law spouse as defined in the Act, who is a single person, which includes a widow or divorcee, who lived with your father for not less than five years preceding his death. In the case that there is no spouse, you would need to obtain the permission of the administrator general of Jamaica to make such an application to proceed to apply for the letters of administration to deal with your father’s estate, as his personal representative. If so appointed, you would be a trustee of the estate properties and the portions of your other siblings’. This is a very onerous duty and can expose you to adverse legal consequences.
Even if you were in Jamaica, you most certainly would need the services of a lawyer do the application, that is to say, to obtain the permission of the administrator general, the oath and the letters of administration and then the revenue affidavit, registration on transmission (this is for the registration of yourself on the registered title as the administrator of the estate) and more. These are very technical and legalistic, you would not be able to do them yourself.
I therefore suggest that you act under the provisions of the Act, whereby you can report your father’s death to the administrator general of Jamaica, and her office can act and do all the documentation, be the trustee and deal with the distribution of the estate to you and your siblings according to law after the deduction of their fees and the costs and estate, transfer taxes, etcetera. You can deal with the report by going to the Administrator General’s Department’s website and proceed with the appropriate directions on it for your purposes.
Finally, you say that you wish to have the real property transferred to your name, so that you can take care of the house and rent it. This is all well and good BUT you and your siblings must agree on this course. You cannot decide to do this without their agreement and consent. If it is agreed, the rental, less proved expenses, must be shared equally among your father’s children,
I get the impression that you have been deciding without the agreement and consent of your siblings and solely on the basis that you are the eldest. This is incorrect and you must get their agreement and consent for you to be the administrator. If you all agree to report your father’s death to the administrator general so that that office can administer the estate, you can all be assured that all the legal responsibilities and obligations of administration and distributions would be met by this statutory official and the burden and struggles can be removed from you all.
I do not believe that you will have difficulty in accessing the website, but if you do, then you can contact the Jamaican High Commission and seek assistance to make contact with the administrator general’s office.
I hope I have clarified the matter for you and that you have a better understanding of dealing with an intestate’s estate.
All the very best.
Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
DISCLAIMER:
The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.
