Sun | Sep 19, 2021

Oran Hall | Why probating a will is time-consuming

Published:Sunday | May 30, 2021 | 12:09 AM

QUESTION: Why does a will take so long to probate?

– Margaret

FINANCIAL ADVISER: How long it takes to get a grant of probate for a will depends on the executor, the attorney-at-law handling the matter and the court.

Under Jamaican law, no property of the deceased can be sold or transferred to the beneficiaries without a grant of probate.

Probating a will is a legal process through which it is tested by the court to prove it is valid. If the court has many cases to deal with, that would delay the process. The attorney retained to handle the matter may cause delays by just being lax, or may have a lot of work to do.

It is also possible that the attorney’s work could be affected by the executor(s) being slow in delivering the documents necessary to carry the process through. Further, the executor may be slow in taking the first steps to begin the process, for example, retaining an attorney.

The executor is the personal representative of the decedent and is responsible for carrying out the wishes of the deceased. The onus is therefore on the executor to start the ball rolling.

Sometimes the deceased names more than one person as executor, but one or more of the executors may not wish to carry out the role, which means that the named executor would have to renounce the executorship by signing, in the presence of a justice of the peace, the Renunciation of Probate document prepared by the attorney. This could cause some delay.

When the executor first meets the attorney, the attorney may ask for certain documents. The attorney’s ability to begin the process depends on how long it takes to present those documents.

The documents are as follows: a list of all the assets of the deceased, a certified copy of the death certificate, the original will of the deceased. So, the executor should present land titles, certificates evidencing ownership of securities, bank books, for example. If the titles to assets cannot be found, it is necessary to apply for replacements.

It is very important for everybody who owns anything to have very clear proof of their ownership and to properly secure such evidence, which is often a certificate. It should be put in a secure place, perhaps a safety deposit box at a financial institution or in a secure place at home.

At least one responsible and trusted person should know where the documents are and how to access them when needed.

The attorney has a lot of work to do, including establishing if the deceased was indebted to any person or institution if the executor has not done so. This is done by advertising for creditors, who must provide real proof of such indebtedness. The standard of proof is quite strict to protect the estate from fraudulent claims.

Additionally, the attorney drafts several documents, including the oath of the executor and the grant of probate, has them stamped at the Stamp Duty and Transfer Tax Department of Tax Administration Jamaica (Stamp Office) upon payment of the requisite stamp duty, and submits the relevant documents to the court for the process to continue.

Overall, the process to obtain the probate of a will is legally quite technical, so this is why it is generally handled by people trained in law.

Considering that testamentary charges and expenses must be paid, the inability to pay such charges may delay the process. They are payable from the estate if it has funds, although the payments or a part thereof may have to be advanced by someone.

Some individuals provide for this situation by buying life insurance, oftentimes term insurance, which is generally relatively cheap insurance. In such a case, it would make sense to name a trusted person as beneficiary to provide the liquidity to make the payments. Naming the estate as beneficiary would not fit the purpose of providing liquidity almost immediately.

Although the process for obtaining probate may not be as short as desired, individuals can help to reduce the time it takes to settle their estates by putting their house in order while they are alive by ensuring their assets are clearly identifiable and documented, ownership is properly established, assets are secure, and at least one person has access to them and the relevant documents.

n Oran A. Hall, author of ‘Understanding Investments’ and principal author of ‘The Handbook of Personal Financial Planning’, offers personal financial planning advice and counsel.