Jersey is a separate jurisdiction to England with a separate body of law. In particular, the law of inheritance and probate differs significantly from that of England and creates responsibilities for the executors and administrators of those who leave movable assets in Jersey on their death.
Grants of probate and letters of administration
'Probate' describes both the grant and the process of obtaining it. A grant of probate is issued to the executor named in a will, or his or her substitute where the individual named is unable or unwilling, or renounces. Absent a will, a surviving spouse or civil partner ? or, absent a surviving spouse or civil partner, the eldest son or someone appointed by the greffier ? is entitled to take out a grant of letters of administration to recover or receive any part of the deceased's Jersey movable estate.
Where the deceased leaves movable estate in Jersey, a grant or letters of administration is required before the assets can be released to the executors or administrators. This applies whether or not the deceased was domiciled in Jersey; the only exception is where the deceased was not domiciled in Jersey and the movable estate is worth less than £10,000. However, the holder of the Jersey asset may still insist on a grant or letters of administration before release.
Application for a grant or letters of administration is made to the probate registrar at the Judicial Greffe (the office of clerks at the Royal Court). The executor or administrator takes an oath and all documentation submitted to the registrar is retained, with original wills and copy grants being open to inspection.
No death duties, estate duty, inheritance tax or capital gains tax is payable in Jersey. Stamp duty is payable under Article 5 of the Stamp Duties and Fees (Jersey) Law 1998 and is assessed on:
- the net value of the estate of a Jersey domiciliary at the date of death; and
- the value of the net Jersey estate of a non-domiciliary at the date of death.
This is calculated at 0.5% for the first £100,000 and 0.75% thereafter, with a maximum stamp fee of £100,000. The probate registrar also charges an application fee of £80 if processed through a legal office and more for a personal applicant.
The family, with assistance from the registrar, will often deal with the estate of a Jersey-domiciled deceased individual. The basic documents required include:
- the original will;
- the death certificate; and
- a valuation of the net assets at the date of death.
Legal assistance may be sought where:
- the estate is sizeable;
- the family feels unable to deal with the situation; or
- there is a risk of dispute.
A fast-track process is available when dealing with Jersey assets of a deceased who was domiciled in England, Scotland, Wales, Northern Ireland, the Isle of Man or Guernsey, where a valid grant has been obtained in that jurisdiction. An oath must be sworn by the person who has obtained the grant or letters of administration. The grant, will and any codicils must each be sealed by the Royal Court and certified on the reverse by the registrar as true copies of the originals. The probate registrar will not accept documentation where the seal cannot be felt on every page. The grant is limited to Jersey assets, and is produced and used to access them.
Where the deceased was not domiciled in Jersey or the United Kingdom, but has left Jersey assets, the grant is issued in the country of domicile and must be re-sealed before any Jersey assets can be accessed. An affidavit of foreign law may be required if the will does not conform to Jersey law or if there is no will. Non-English documentation must be accompanied by an official translation. A power of attorney enables a person (often an advocate) to act on behalf of the executor. The attorney takes an oath and the grant – restricted to Jersey estate – is used to uplift or transfer assets in accordance with instructions.
A will can be attacked on various grounds, including:
- incapacity;
- failure to adhere to applicable formalities;
- illegality;
- fraud; and
- coercion.
Jersey law still imposes forced heirship in relation to movable estate, so a will of movables of a Jersey domiciliary can be subject to a claim for reduction ad legitimum modum where a surviving spouse, civil partner or child does not receive his or her lawful entitlement. The will is not set aside; instead, the entitlement is provided for and the testamentary dispositions are reduced.
The prescription period for both nullity claims and reduction ad legitimum modum is one year and one day from the death. An additional remedy is to claim that rapport a la masse be made. This is a claim by one or more heirs against another (not an attack on the will), which is made within one year and one day from the death.
Anyone making a will must be of sound mind and either aged at least 18 or married. Jersey law allows marriage at the age of 16, but those between 16 and 18 must have the written consent of their parents or guardians.
Wills must be signed or acknowledged in the presence of two witnesses at the same time. No witness can benefit under the will that he or she witnesses, or be a close relative of either the person making the will or a beneficiary under the will.
Wills can be amended as often as desired by signing a codicil. The procedures for correctly executing this are the same as those for creating a will and an incorrectly executed codicil will be considered invalid. Wills should be revised as personal circumstances change (eg, when people get married or divorced, or have children).
Revocation may take place at any time before the death of the person making the will. Revocation can be carried out by:
- destroying the will;
- executing a further will; or
- the testator evidencing an intention to revoke (eg, writing "This will is revoked" on the document).
Legal advice is recommended before revoking a will or part of a will, so that the consequences of doing so are known before the act of revocation is carried out.
A will dealing with immovable property in Jersey must be executed in accordance with the strict formalities required by law; if it is not, it will be invalid and ineffective. Certain peculiarities of Jersey law may not be complied with if the will is not prepared by Jersey lawyers. One of the witnesses must be either an advocate or solicitor of the Royal Court, a crown officer or a member of the Jersey States if the will is executed in Jersey, or a notary public if the will is executed outside Jersey. Further, the will must be read aloud in the presence of the person making it and the two witnesses.
In relation to immovable property, Jersey law stipulates that a surviving 'spouse' – ie, a husband, wife or civil partner, but not an unmarried or common law partner – is entitled to life enjoyment of one-third of it.
If there is no will, or if the will is found to be invalid because it does not comply with Jersey law, legislation dictates the following:
- The immovable estate of a single person must be divided equally between his or her heirs (usually brothers or sisters);
- The immovable property of a single person with children must be divided between the children in equal shares;
- The immovable property of a person with a husband, wife or civil partner, but no children must go to the surviving husband, wife or civil partner;
- The immovable property of a person with a husband, wife or civil partner and children must be divided equally between the surviving husband, wife or partner and the children, with the surviving partner having lifetime enjoyment of the matrimonial home.
Confusion can arise where the families of those with assets in Jersey and the practitioners dealing with those estates are not familiar with Jersey law. They may assume that Jersey is part of the United Kingdom and that a UK grant will suffice, and be unaware of the separate probate process required to obtain a Jersey grant.
It is possible that, as a result of this lack of awareness, Jersey movable estate may be dealt with where no grant or letters of administration have been obtained and the custodian of the asset is unaware of the requirements imposed by Jersey law.
Article 23 of the Probate Jersey Law provides that anyone who takes possession or in any way administers part of a deceased's moveable estate without obtaining a grant or letters of administration is guilty of intermeddling and liable to up to 12 months' imprisonment and/or a fine. Although prosecutions are rare, the consequences are serious and individuals should ensure that appropriate advice is taken and the requisite applications are made.
Although the relationship between Jersey and the United Kingdom is somewhat complicated, legally it is very clear – the two are different jurisdictions with separate bodies of law. This affects inheritance and probate issues, and non-Jersey practitioners can minimise complexities and delays by taking advice and guidance on Jersey law at an early stage. In most cases, the assistance of a Jersey lawyer will produce a cost-effective and faster outcome.
For further information on this topic please contact Julie Melia or Fiona Lilleyman at Ogier by telephone (+44 1534 514 000) or email ([email protected] or [email protected]). The Ogier website can be accessed at www.ogier.com.
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