Probate and Administration
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.
- Resealing of Foreign Grants (see below)
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.
There are two ways to apply for a grant:
- In Person
- By hiring the services of an attorney.
The details for applying for a grant are contained in the Probate and Administration Rules (2001 Revision) and by following the application samples at the back of the Rules.
- The Application – the application asks for details of the deceased and the applicant.
- Account of the Estate – you must give a full account of the deceased’s estate. You should try to obtain the full value of the deceased’s estate.
Where there is a will:
- The original or a certified Death Certificate
- 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 fee to file the application is found in the Schedule of Fees in the Grand Court Rules 1995 (Revised).
The stamp duty for certain documents is found in the Stamp Duty Law.
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.