Dealing with an Estate after Death

A brief guide to explain how to deal with a person’s possessions after they die.

Finding a Will

If you are not sure whether the person made a will, or you don’t know where the will is, you can contact the Guernsey Bar Secretary, who will send a circular to all advocates’ practices. You should email the Bar Secretary (contact details on www.guernseybar.com) and include the following information about the deceased (the person who has died): full name, date of birth, date of death and last place of residence, or at least as much of that information as possible.

You can say that Citizens Advice Guernsey has referred you to the Guernsey Bar.

Alternatively, a will might be held at the deceased’s bank.

Probate

‘Probate’ is a general term used for a grant which authorises a person to administer and manage the personal estate (i.e. money and other personal possessions other than houses and land) of the deceased.

For information relating to the deceased’s real property i.e. houses/land see Transfer of real property on death below.

This may take one of two forms:

1. A Grant of Probate where an executor named in the will is given authority to wind up (i.e. to pay the debts and distribute the assets of) the deceased’s personal estate.
2. A Grant of Letters of Administration where:

a) there is a will, but the executor/s named in the will has either died or is unwilling to act, or
b) there is no will.

Where 2(a) applies, the person entitled under the will to the residue of the deceased’s personal estate may apply for a Grant.

Where 2(b) applies, certain relatives of the deceased are entitled to apply for the Grant. The surviving spouse (if any) is first entitled, followed by the deceased’s adult children in order of
seniority, followed by the deceased’s adult grandchildren, again in order of age, and so on.

Further information is available at www.guernseyprobate.gg which includes an application form and details of how to apply for a Grant. Or you can contact the Guernsey Probate Registry, which is at the Constables Office, Lefebvre Street, St Peter Port, GY1 2JS, telephone 721732, Email info@guernseyprobate.gg.

Opening hours for telephone callers are 9am to 1pm Monday to Friday, and for visitors to the offices 9am to 1pm Monday to Thursday.

How is a Grant obtained?

Application for a Grant is made to the Probate Registry (contact details above), either directly by the named executor, or by the relative entitled to apply for a Grant of Letters of Administration under the above rules, or through an Advocate.

Generally, a Grant can be issued within a few working days. The Probate Registry sits every Friday. Where there is no will, a prospective administrator is required to produce documentary evidence of his entitlement to apply for Letters of Administration.

The Probate Registry will advise as to the full requirements for the application. Some evidence of the value of the estate will be required.

Do I need an advocate?

An Advocate can assist with the process of obtaining probate and, if required, with the winding up of the estate. It is not obligatory to employ an Advocate, either to obtain probate or to wind up the estate, and it will probably not be necessary to do so where the winding up is a simple matter. The staff at the Probate Registry will advise as to the procedural steps to be taken for obtaining probate or letters of administration but they cannot give legal advice.

Is a Grant always necessary?

No, and it is not obligatory to obtain one. The sole purpose of obtaining a Grant is to authorise the release of the deceased’s personal property by the bank or other asset holder to the executor or administrator; and to give the executor or administrator power to deal with them. If the asset holder (such as a bank) is willing to release the assets without a Grant, then there may be no point in obtaining one. For example, small balances of £5,000 or less will usually be released without a Grant, provided that the recipient of the money provides an acceptable form of identity, and proof of the death of account holder to the bank or other institution. However, with the introduction of more stringent anti-money laundering requirements, increasingly it is more often necessary to obtain a Grant. You should ask the bank or other asset holder what their requirements are for releasing the assets.

What is the cost of a Grant?

The cost is set by a tariff available from the Probate Registry. The Registry fees are currently approximately £35 per £10,000 of the gross value of the personal estate (which will need to be declared before an order is made), plus small additional charges for ancillary documents and for each page of any will or codicil (a legal document that amends, explains or removes part of an existing will, without replacing the entire will). For estates with a gross value of £80,000 or less, the percentage charge is lower.

Should a professional person, such as an Advocate, or a bank be engaged to obtain a Grant, their fees are payable in addition and can vary greatly. It is sensible to make an enquiry beforehand as to the likely cost.

What happens if there is a dispute as to rights on inheritance?

If there is a dispute as to who is entitled to benefit from a personal estate, the person disputing the matter may enter a “caveat” at the Probate Registry. The effect of this is to prevent the issue of a Grant of Representation, whether probate or letters of administration. A fee is payable; the caveat will last for 6 months and is renewable for a further fee. If the person who has lodged the caveat agrees, the Probate Registry can grant a limited right to enable the executor or administrator to pay the debts but not to distribute the assets to beneficiaries.

If the dispute is not settled, the person challenging the rights of succession must, if they wish to pursue the matter, bring proceedings in the Royal Court.

In any of these circumstances it would be prudent (and necessary in the case of legal proceedings) to get legal advice.

Publication of Probate

Wills of personalty which have been admitted to probate are a matter of public record and application can be made to the Probate Registry for a copy of the will by a person having a genuine reason.

Powers and duties of an executor or administrator

The executor or administrator takes an oath (or makes an affirmation) to administer the personal estate in accordance with the law and the terms of the will, and to render an account for his administration to the Probate Registry if called upon to do so.

The duties include gathering in the assets, payment of debts (including taxes e.g. unpaid income tax), and the distribution of the net estate to the beneficiaries entitled by law.

In small estates this is relatively quick and simple; in more complex estates it can take months, and sometimes years. It is advisable to consider advertising for creditors as set out below (Protection of personal representatives by advertisement).

When all debts have been settled, and all the beneficiaries have been paid, the executor/administrator should send copies of the accounts to the remaining beneficiaries (i.e. the beneficiaries entitled to the residue of the estate after debts and specific legacies have been paid).

If there is a query about the administration of the estate by the executors or administrators, the complainant can write to the Registrar at the Probate Registry giving the following information:

• Name of Deceased;
• Date of Death;
• Name of Executor/Administrator;
• What connection the person querying the administration of the Estate has with the deceased.

The Registrar has power to demand sight of the estate accounts but if there is any dispute between the executor and a beneficiary, then application should be made to the Royal Court. Should an executor or administrator so wish, an application can be made to the Royal Court for directions as to the performance of his duties (again, in this situation, legal advice should be obtained).

What assets does the Grant cover?

Normally, the Grant only authorises the deceased’s executor or administrator to deal with the deceased’s personal estate which the deceased held in his or her sole name. Where assets are held jointly with another person they may pass to the survivor but in case of doubt, legal advice should be sought.

The administration of Guernsey real estate (i.e. land and house in Guernsey) does not involve an executor or administrator sworn by the Probate Registry (see below Transfer of real property on death). The exception to this is where the will of real property directs the executors of the will of personalty to sell the property and distribute the proceeds to the beneficiaries of the personal estate.

Protection of personal representatives by advertisement

The executors or administrators of a personal estate (PRs), once sworn in, may publish in La Gazette Officielle, in two successive weeks, a notice of their intention to distribute the estate, and requiring anyone wishing to make a claim on the estate to send, within a specified period at least 3 months after the date of the second publication, particulars of their claim.

The notice must specify the name and last address of the deceased and the names and addresses of the PRs to whom particulars of the claim are to be sent.

The effect of such publication is that, at the end of the specified period, the PRs may distribute the assets amongst the persons they have identified as having an entitlement, whether as a result of the publication or otherwise, and the PRs will then have no liability towards any claimants who subsequently come forward.

Liability for debt when debtor has died

This is a complex area, and legal advice is recommended if heirs are pursued:

1. A debt outstanding at the time of death remains payable from the debtor’s estate.
2. If there is insufficient money in the estate the creditor might pursue the heirs to pay a debt. The heirs can renounce (i.e. give up completely) their interest in the estate, which would be a defence to the claim, but in this situation, they should take legal advice without delay to try to avoid being found liable for the debts.
3. If the personal representatives have advertised for creditors as set out above, they will be protected from any liability. If they have not done so, and they have distributed the estate without taking into account outstanding debts, then they might be open to personal liability in some circumstances – again, in this situation, legal advice should be sought.

Outstanding loan made prior to death of creditor

A loan by the deceased prior to his death was a contractual agreement by the lender giving him the right to receive repayments. This is a valuable asset and the right to receive these repayments will transfer to the deceased’s legal heirs unless the terms of the loan state otherwise.

In case of doubt, legal advice should be sought.

Transfer of real property on death

It is not necessary or even possible to obtain probate in relation to real property in Guernsey – any real property in the sole ownership of the deceased at the time of his death will pass to the heirs by operation of law (whether by will or according to the rules of intestacy) at the moment of death.

Where property was jointly owned, it might pass to the surviving owner or to the heirs of the deceased, depending on the type of joint ownership – in case of doubt legal advice should be obtained.

If the deceased made a will dealing with realty, there is no need to do anything immediately. There is no need to apply for the name on the deeds to be changed. However, an application may be made to the Royal Court for permission to register the will; and this must be done before the property is sold. Any beneficiary named in the will can apply for its registration. An application must be signed by an advocate who must confirm that all formalities have been properly concluded and that there is no reason in law why the application should not be granted. Once the application has been granted by the Royal Court the will of realty will be registered at the Greffe and it becomes a matter of public record. It will form part of the title deeds of any property involved to prove the heir’s ownership.

If the deceased dies without leaving a will, the rules of intestacy will apply and entitlement to benefit depends on whether the deceased left a spouse or civil partner and/or descendants.

Although ownership vests in (passes to) the legal heirs automatically at the moment of death, it is important that the legal heirs are properly identified before the property can be sold or otherwise dealt with. This is because being born outside of marriage does not prevent someone from inheriting. If there is no will clearly naming the beneficiaries, there remains doubt as to whether all the legal heirs are identified and so an additional legal process is required.

Administration orders for real property

Where a person has died intestate as to real property, or it is not certain whether all the heirs to a deceased person’s real property have been identified or found, it is necessary to apply
to the Royal Court for an “Administration Order”. This will enable the person appointed as Administrator of the real property to sell the property. The services of an Advocate are
required for this type of application, which involves the preparation of an affidavit (a sworn written statement used as evidence) stating the circumstances of the application and the steps that have been taken to try to establish whether any other heirs exist.

Once granted, the person sworn as Administrator may sell the property and distribute the proceeds of sale to the heirs.

General disclaimer

The purpose of this note is to provide general guidance. While it is believed to be accurate and up to date, it is not authoritative and has no legal effect. No warranty is given that the text is free of errors and omissions, and no liability is accepted for any loss arising from its use. Users of this guidance note are encouraged to exercise their own skill and care in relation to the information contained in this guidance note and to obtain relevant professional advice.