Last week we discussed how to write a will. This week we will examine the process of administering an estate.

Where the deceased left a valid last will and testament

Where the deceased validly executed a will appointing an executor to administer his estate, the executor (the person responsible for administering your estate) can begin to act immediately on the death of the testator. The executor's duty is to secure assets (particularly perishable assets), continue and enforce contracts, such as tenancy agreements, carry out the deceased's wishes as they relate to the disposal of his body, if these instructions were part of the will.

The executor will need to retain an attorney to commence an application to have the will probated. The attorney will require certain information and documents pertaining to the deceased's assets and the executor is charged with the responsibility of investigating assets, collecting and securing original title documents and ascertaining the current addresses of at least one of the attesting witnesses, who will be required to execute one of the court documents, namely an affidavit of attesting witness. After confirmation of assets, the attorney will draft the necessary documents to ground the application to admit the will to probate. Once the grant of probate is issued by the relevant court, the executor will follow the normal process of administration.

Where the deceased left a valid last will and testament but did not name an executor or the executor named refuses to or cannot act

If the deceased's will failed to name an executor or if named, the executor refuses to or cannot act, then the Administrator-General's Act provides that it is the duty of the Administrator-General to administer such an estate. If there are no minor beneficiaries under the will, however, the Administrator-General will issue her consent to one or more of the adult beneficiaries under the will to apply for a grant of letters of administration with will annexed. The applicant(s) will need to submit the following to the department:

1. Particulars required for the administrator general completed and signed before a justice of the peace.

2. Proof of death (certified copy of death certificate).

3. Deed of renunciation, duly signed by the executor, stamped and recorded at Island Records Office. This is in relation to an executor who has been appointed under the will but refuses to act.

4. Certified copy of death certificate for the executor, if an executor was appointed but predeceased the testator or died subsequently without probating the will.

5. Oath of administrator(s) for letters of administration with will annexed. This will be prepared by the attorney retained by the applicant.

6. The applicable fee. Provided that all the requisite documents and information are submitted to the administrator general, she will issue her consent and this and other documents will be submitted by your attorney to the relevant court for a grant of letters of administration with will annexed.

Once the grant is issued, the appointed administrator(s) will follow the normal process of administration.

Where the deceased died intestate leaving adult beneficiaries

Where the deceased died intestate (without leaving a valid will), no person is in control of the estate until the court appoints a personal representative by issuing a grant of administration. The right to a grant of administration follows the right to property. In other words, beneficiaries of the estate will be the proper applicants. The Intestates' Estates and Property Charges Act sets out the order of priority for potential applicants. As there is no will to allocate the assets to specified individuals, the beneficiaries of an intestate as well as their prescribed respective entitlement is prescribed by statute. Under the Intestates' Estates and Property Charges Act, the primary beneficiaries are the spouse and children. All applications for a grant of letters of administration must have, as a supporting document, the certificate of the administrator general.

The attorney acting for the intended applicant/administrator will need to submit the following documents to the administrator general's Department in support of an application for the certificate:

1. Particulars required for the administrator general completed and signed before a justice of the peace.

2. Proof of death (certified copy of death certificate preferred).

3. Oath of administrator(s) for letters of administration. This will be prepared by the attorney retained by you.

4. Consent of person entitled in priority, if the applicant does not have the prior right to apply.

5. Order declaring the applicant the lawful spouse of the deceased, for persons who are involved in common law union (specific requirements must first be met).

6. The applicable fee. Provided that all the requisite documents and information are submitted to the administrator general, she will issue her certificate and this and other documents will be submitted by your attorney-at-law to the relevant court for a grant of letters of administration. Once the grant is issued, the appointed administrator(s) will follow the normal process of administration.

Where the deceased died intestate leaving minor beneficiaries

Once there are minor beneficiaries on intestacy, the administrator general is mandated by the administrator general's Act to administer that estate. The administration of an estate by the administrator general will only cease after the last minor attains the age of 18 years. Any person, other than the administrator general, who wishes to administer an intestate estate with minor beneficiaries, can only do so with an order of the court.