16 February 2021 / By
Knowledge…Shared…Multiplies
(Part 1)
What happens to the assets of a dead person? What happens to the house and land, the money in the bank, the shares in various businesses, the jewelry, and cars that the deceased leaves behind? If you have any doubts about this, then you should find this and the next few articles useful.
The assets of a dead person are collectively referred to as his or her estate. Two big issues arise regarding the estate of a dead person. Firstly, who is to be in charge of the estate of the dead person, and secondly who is entitled to the benefit of the estate.
Let us look at who is to be in charge when the deceased person left a will.
Legal Personal Representative
The person who is put in charge of the estate of a dead person is referred to as the legal person representative of the deceased person. You may have heard terms as administrator, administratrix, executor or executrix. All of these are examples of legal personal representative in the same way as man and woman are examples of human beings. The job of the legal personal representative is to administer the estate of the deceased person. This entails paying out the expenses of the estate, such as taxes, legal expenses, funeral expenses, debts, and then passing on the rest of the estate to those who are entitled to it. The function of the legal personal representative is the basis of the phrase “administration of estate”.
Appointment by the Court
The legal personal representative is appointed by the court. A formal application must be made to the court. After scrutinizing the application and being satisfied, the court will issue a formal document referred to as letters of probate or letters of administration.
Not anyone can apply to be legal personal representative. There must be some form of connection with the deceased person. If there is a Will, the person (or any of them) named by the testator in the Will as executor has priority to apply.
If the person named in the Will applies, the court will issue letters of probate (or a grant of probate). If the person applying is male, they would be appointed executor. If the person is female, they will be appointed executrix.
If no one is named as executor or if the person named as executor is not willing to apply, then someone named as beneficiary in the Will can apply. There are relatively complicated rules as to
who among the beneficiaries has priority and how this priority is impacted if death intervenes. These rules are contained in the English Non-Contentious Probate Rules, which are the Rules that apply in Grenada, despite us obtaining independence 47 years ago.
In the case where there is a Will, but no one is named as executor, or if the person named as executor is not willing to apply, the document the court will issue appointing a legal personal representative is not referred to as letters of probate (or grant of probate) but as letters of administration with Will annexed.
The takeaway is that where there is a Will, to determine who has the right to be appointed to the important position of legal personal representative of the deceased, you must look to the Will: the answer lies in the Will!
–Joseph Ewart Layne
This article is for general information purposes only. Its contents do not constitute legal advice. Before you act on any matter in this article, seek advice from an attorney-at-law.
Joseph Ewart Layne is the Principal of JEL Professional Solutions Inc. He is a graduate of Hugh Wooding Law School; he holds a LLB (Honours) and a LLM (Corporate & Commercial Law) from London University and a LLM (Legislative Drafting) from UWI, St. Augustine. He also holds a BSc. (First Class Honours) in Applied Accounting from Oxford Brookes University and is an ACCA Affiliate.
JEL Professional Solutions Inc. owns and operates the website: www.jelgrenada.com