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22 February 2018
Jersey is a separate legal jurisdiction from the United Kingdom, with a separate body of law. Many clients do not realise this, which can cause issues when it comes to administering their estates. Lawyers commonly encounter situations where estate administration would have been easier and less costly if the client had taken professional advice in the first instance. The law of succession and probate in Jersey differs significantly from that in the United Kingdom and creates responsibilities for the executors and administrators of those who leave behind assets in Jersey.
If a person has Jersey movable assets (eg, bank accounts, shares registered with a Jersey registrar, shares in a Jersey company or shares in a foreign company that are held under a Jersey-governed nominee agreement or declaration of trust), these should be considered when planning his or her estate.
Due to housing market restrictions in Jersey, it is less common for a person domiciled outside Jersey to own Jersey immovable assets on his or her death. The succession of Jersey immovable assets on a person's death is governed by a completely different set of laws and procedures from those relating to Jersey movable assets. For example, a will covering Jersey immovable assets is not dealt with by an executor – it is simply registered with the Jersey Public Registry and the title to the property passing under the terms of the will is transferred accordingly to the beneficiaries.
Care should be taken to ensure that a client who owns movable or immovable assets situated in Jersey has a valid will or wills in place to properly cover these.
In some circumstances (eg, if a client owns Jersey immovable assets), it is better to put in place a separate Jersey will. If the client owns Jersey movable estate, this might also be a good idea since the procedure for obtaining a grant of probate in Jersey is very efficient compared to that in the United Kingdom or other foreign jurisdictions. Having a separate Jersey will in place enables the Jersey assets to be released before the rest of the deceased's assets and without waiting for the grant to first be issued in the United Kingdom, or for any Her Majesty's Revenue and Customs clearance to be obtained. This can help with the payment of any outstanding debts of the deceased, such as an inheritance tax liability.
If the deceased does not have a separate Jersey will in place to cover their Jersey movable assets, and dies with these in his or her sole name, a Jersey grant of probate or letters of administration must be obtained in order for the assets to be released. It is not possible for a UK-issued grant to be directly used to release assets based in Jersey (unless they have a value of less than £10,000 and can therefore be dealt with under the small estate exemption procedure), so an application must be made for a Jersey grant.
However, the Probate (Jersey) Law 1998 (as amended) introduced a 'fast-track' method of obtaining a Jersey grant which enables a UK-issued grant to a UK-domiciled estate to effectively be 're-sealed' in Jersey – thereby reducing the time and cost involved in obtaining a Jersey grant.
The fast-track process is only available for estates where the deceased died while domiciled in the British Isles (ie, England and Wales, Scotland, Northern Ireland, Guernsey or the Isle of Man) and where a corresponding grant of probate or letters of administration have already been issued in that jurisdiction.
An application for a Jersey grant via the fast-track process must be made through a Jersey agent, such as a locally based lawyer, and the following documents will be required by the agent:
Once the Jersey agent has received the above documents, an oath will be drafted to be signed by the executors or administrators in the presence of a suitably qualified witness (eg, a solicitor or barrister). The signed oath should then be returned to the Jersey agent, enabling them to apply for a Jersey grant. The Jersey grant is usually issued within three to five working days of the application having been made to the Jersey registrar.
In the event that the deceased was domiciled outside of the United Kingdom (and Jersey) but had assets in Jersey, the fast-track process will not apply and the foreign estate application process will be required instead.
The application process for such an estate is quite different in that it requires the executor named in the will (or, if the deceased left no will, the heirs or administrators) to physically appear in the Royal Court of Jersey. This is not a factor that many people consider in their estate planning for Jersey situs assets, as it is quite unusual. It means that if the executor was, for example, living in South Africa or Australia, they would need to fly over to Jersey in order to make the required court appearance. Their other option would be to appoint a local agent by way of power of attorney to make this appearance and apply for the Jersey grant as the attorney executor (or administrator) on their behalf. In this type of estate, any grant that has been issued in the deceased's country of domicile will usually be re-sealed in Jersey before the Jersey assets can be accessed.
The documents required by the foreign estate application process are more complex than those needed for the fast-track process and can include affidavits of foreign law and official translations of foreign-language documents into English. While obtaining these documents – depending on the deceased's country of domicile – can take time, the Jersey grant will still be issued within three to five working days of the application being made and accepted. The Jersey grant is limited to Jersey assets and is produced and used in order to access them.
The process is more straightforward if the foreign-domiciled person has a separate Jersey will in place – especially if it appoints a locally based person or company as executor in the first instance. This means that, on receipt of the death certificate, the local executor can go almost immediately to the Jersey court to make the relevant application.
When applying for a Jersey grant via either process, stamp duty is payable to the Jersey court under Article 5 of the Stamp Duty and Fees (Jersey) Law 1998. It is charged at 0.5% of the Jersey assets' value at the date of death (which is rounded up to the nearest £10,000) on estates with a value of up to £100,000, and at a rate of £75 per additional £10,000 thereafter. There is also an £80 probate application fee payable in every case. The stamp duty payable is capped at £100,000.
The maximum stamp duty of £100,000 would be payable on an estate with Jersey assets that have a value of £13,360,000 at the date of death, so any estates that are larger than this should take advantage of the stamp duty cap.
Jersey's inheritance and probate laws of are remarkably different from those of the United Kingdom. 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 an efficient and cost-effective outcome.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
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