Sat | Nov 27, 2021

Grant of probate ( Part 2)

Published:Monday | September 3, 2012 | 12:00 AM
Sherry-Ann McGregor

I wish to thank the reader who reminded me to complete the second part of the article published on July 30, 2012, and the Probate Department at Nunes, Scholefield, DeLeon and Co. for summarising the process involved in applying for a grant of probate.

A person who is appointed as an executor under a will needs to make an application to the court (usually the Supreme Court) for a grant of probate. They also need to make an application to the Stamp Commissioner for an assessment of the taxes which must be paid.

The most important document to be filed in the Supreme Court when making an application for a grant of probate is the Oath of Executors. Among other things, the oath sets out the information about the deceased - name, address, occupation, domicile at the date of death, evidence of death (usually exhibiting a death certificate), where the deceased died, the date of death and the value of the estate. That executor (or executors) declares that he will "faithfully collect, get in and administer according to law all the real and personal estate of the deceased" and "render a just and true account of [his] executorship whenever required by law so to do."

Depending on the circumstances of the particular case, additional documents may be required, such as:

1 Affidavit of delay. An executor is required to make an application for a Grant of Probate within three years of the death. If the application is not made within that time, he must file an Affidavit of Delay explaining to the court why the application was not made within that period.

2 Affidavit in proof of death. If a death certificate is not available, or cannot be found, an affidavit can be done by a person who knew the deceased, attended the funeral and saw the body of the deceased interred.

3 Affidavit of due execution. If the will contains no attestation clause, that is a clause which states that the will was executed in accordance with the provisions of the Wills Act or if, on the face of the will, there is a question as to whether the will was properly executed or if there is no date on the will, an affidavit would have to be done by one of the persons who witnessed the deceased person sign the will to say when and how the will was executed. Proper execution usually requires the deceased person to sign the will in the presence of two witnesses, each of whom then signs the will in his presence.

4 Affidavit of plight and condition. This affidavit is usually required if the will contains alterations or markings, staple holes, creases, watermarks or has generally become soiled or tattered. The affidavit will explain the condition in which the will was found and why it is in that condition.

5 Affidavit of handwriting. If none of the persons who witnessed the testator sign the will can be located, then a person who knew the deceased and would be well-acquainted with the manner and character of the deceased's signature, could sign an affidavit to verify that the signature on the will is that of the deceased.

The application to the Stamp Commissioner for the assessment of the taxes payable by the estate requires the following documents to be submitted:

1 Revenue Affidavit. This document contains information as to the value of real estate and/or shares owned by the deceased as well as evidence of the death of the deceased. As such, a death certificate should be submitted. The value that is to be used is the value as at the date of the deceased's death.

2 Valuation/share letter/audited statements. It is recommended that the evidence of the value of the real estate should be sent in the form of a valuation report. For shares, a letter from the company secretary for a listed company would be submitted. If the company is not a listed company, then the audited financial statements for the company should be submitted.

3 Declaration of matrimonial home and/or principal place of residence. This document will state that a particular property was, at the time of death, his or her matrimonial home or principal place of residence. In this way, the estate may be spared some taxes.