When a person dies and leaves an estate somebody has to deal with his or her estate (this includes money, property and other possessions) by collecting in all the estate, paying any debts and distributing the estate to those persons entitled to it. The term of “Probate” or “Administration” means the issuing of a legal document called a Grant to one or more persons authorizing them to deal with deceased person’s estate. A grant of probate is issued where a will is left by the deceased and the will is proven to the satisfaction of a judge to be a valid will. A grant of Letters of Administration is issued by a judge where no will has been left. These are issued to the person or persons who are entitled according to the Succession Law to benefit from the deceased person’s estate. Applications are made to the Civil Registry Probate Section of the Grand Court Registry. The Probate and Administration Rules of the Cayman Islands provide for four types of grants:
Probate – Probate is issued to an executor or executors named in a deceased person’s will.
Letters of Administration (with the will annexed) – Issued where there is a will, but no named executor or the executor has renounced because he/she does not wish to be involved in dealing with the estate.
Letters of Administration – Issued because the deceased has not made a will, or where a will is made it is deemed to be invalid.
Persons or organizations holding money or other assets in the deceased’s name will need to know who will be entitled to it and the grant is proof that the person named in it has a legal entitlement as executor or administrator. The executor or administrator is obliged to distribute the assets to the beneficiaries under the will or under the Succession Law as the case might be. Where the deceased died leaving real property registered in his or her name (except for joint property) the issue of a grant of representation is absolutely necessary. A beneficiary will need a grant to transfer or sell any property held only in the deceased’s name. Prior to the issue of a grant of representation the real and personal estate of the deceased person vest in law in a Judge of the Grand Court. The estate left when a person dies passes to the people named in his or her will. If there is no valid will, it passes to his or her next of kin under the Succession Law. The grant serves as proof to anyone wishing to see it that the person named in it is entitled to collect in and distribute the estate.
The Rules which govern the administration of estates in the Cayman Islands are the Probate and Administration Rules (2001 Revision) which are made under the Succession Law (2004 Revision). These Rules govern who may be given a grant, and whether or not one is issued may depend on the circumstances. The following points are a brief guide:
If there is a will with named executors they are the first persons entitled to a grant.
If there are no executors or the executors are unable or unwilling to apply for a grant of representation, the next person(s) entitled to a grant is any person named in the will to whom the deceased leaves all his estate (or the remainder after the gifts have been paid).
If the deceased has not made a valid will, then the application for a grant should be made by his or her next of kin in the following order of priority:
Husband or Wife
Sons or daughters
Brothers or Sisters of the whole blood
If there are no brothers or sisters of the whole blood then brothers and sisters of the half blood.
More distant relatives
A grant cannot be issued to any person under the age of 18.
A child/children born out of wedlock will fall to be considered under special circumstances.
If you are not sure whether you are entitled to apply you should check with an attorney-at-law. When more than one person is entitled to a grant they may all obtain a grant together. A maximum of only four applicants is allowed. In most situations only one or two persons will need to obtain a grant. If more than one applicant is required the Probate Section will inform the applicant as soon as possible after the application is received.
Application for a grant of representation must be made within 6 months of the date of death of the deceased. In the event of failure to do so, leave of the Court must be obtained before an application can be made.
The Original Will (we suggest that you keep a copy of any will that you send with your application)
Where there is no will:
The original or a certified Death Certificate
The Application for Letters of Administration
Declaration of Bond in a sum equal to twice the value of the known assets of the Estate given for due execution of the estate. The bond must be given by each grantee.
Affidavit of the applicants explaining the basis upon which they are entitled to the grant and stating to the best of their knowledge the assets of the estate. This affidavit must also name all persons known to be entitled to share under the estate.
The application must be published in respect of the estate of persons who died domiciled in the islands. The application is published in the Cayman Gazette for Probate matters. Letters of Administration are published on the Court’s Notice Board and in the Cayman Gazette.
A caveat is a notice in writing lodged in the Probate Registry which prevents a grant being made without notice to the person who has entered the caveat. A caveat may be entered to give time to the caveator to make enquiries and to obtain such information for him/or her to determine whether or not there may be sufficient grounds to oppose the grant. The person by whom, or on whose behalf, the caveat is entered, is called the CAVEATOR.
Once the application appears to conform to the Probate and Administration Rules (2001 Revision), the Probate Clerk will forward the application to a Judge of the Grand Court for granting. The Judge ultimately decides whether an application satisfies the requirements of the Law or Rules.
In dealing with applications in respect of small estates, the functions of a Judge in Chambers may be performed by a Magistrate of the Summary Court in Chambers. Please note that the responsibility of the Probate Registry ceases when the grant is issued.
Personal representatives shall have one year to administer an estate. This means that you must distribute the estate to the persons who are entitled to a share in the estate. Every Personal Representative shall file in the Office of the Clerk of the Courts, accounts showing the receipts and distributions of the deceased’s estate supported by an affidavit. These accounts shall be open to the inspection of persons beneficially entitled.