What is Jersey Probate?

Probate is the permission of the Royal Court of Jersey to administer the movable assets and liabilities (estate) of a deceased person, where they left a will.  Where the deceased died without leaving a will an application for letters of administration may be made by the person entitled to administer the deceased person’s estate, in accordance with the law of the deceased person’s place of domicile. 

In Jersey, probate applies to movable assets only.  Movable assets include, bank accounts, investments, shareholdings etc. Movable assets do not include freehold property.

What is domicile?

Broadly speaking domicile is an individual’s permanent home, where they intend to live for the remainder of their lives.  The law of a person’s place of domicile may determine who is entitled to administer and/or inherit their worldwide movable estate.  The first step when considering applying for Jersey probate (or letters of administration) is to establish where the person was domiciled at the date of their death. 

Exemption from the requirement for a Grant of Probate (Letters of Administration) in Jersey (foreign domiciled)

Where a deceased held movable assets in Jersey with a value of £30,000 or under at the date of their death, an exemption from the requirement for a Jersey grant of probate (or letters of administration) may apply, at the discretion of the asset holder (e.g. bank/registrar/investment house).  

In this scenario, an application should be made to the asset holder to enquire as to whether they require a Jersey grant of probate (or letters of administration) before releasing the asset. 

Jersey Probate/Letters of Administration – Fast Track Procedure

When does the Fast Track Procedure apply?

The Fast Track procedure applies in Jersey where the deceased died domiciled in any of the following jurisdictions, leaving assets in Jersey and a grant of probate (or the equivalent) was obtained in the jurisdiction of domicile: -

• England and Wales 
• Scotland
• Northern Ireland
• Guernsey

What information and documentation do you need to provide us with in the Fast Track procedure?

• The original death certificate.
• Copies of the will and the probate issued in the place of domicile, bearing the stamp of the court on each page and certified as true copies of the originals by the issuing Probate Registrar (or the equivalent where the deceased died without leaving a will).
• Provision for stamp duty, which is calculated on the net value of the Jersey estate of the deceased at the date of death and is calculated as £500 on the first £100,000 and £75 on each £10,000 or part thereof thereafter, plus £80 court fee. There is a maximum cap of £100,000 on stamp duty. 
• The name, residential address, email address and telephone number of each executor (or administrator where the deceased died without leaving a will). We need this information from the outset, so that we can prepare our client take on form to be completed by each the executor. 
• Identification documentation in respect of each executor (or administrator) in the form of a passport or driving licence and two verifications of residential address, dated within the past three months. These document must be certified as true copies of the originals in accordance with our verification of identity requirements. A local Post Office may provide this service. 
• Information on the source of wealth of the deceased. 

Process 

Once we receive the requested documentation and information, we prepare an oath for the executor(s) to swear.  Once we receive the sworn oath, together with the requested documentation and information, we lodged the Fast Track application at the Jersey Probate Registry.  

The probate document is usually available within 5 to 7 days of the date on which the application is made.  We then send the probate to the executor(s) so that it may be sent to the Jersey institution(s) holding the asset(s). 

For further advice or an informal chat in relation to obtaining probate in Jersey contact Claire Kingham or any member of our probate team at info@benestsyvret.com or on 01534 875875.

A recent conversation with a client gave rise to the quote “I’m only thirty years old – I’m too young for a Lasting Power of Attorney!”

We were chatting as we prepared to go to Court to sell a flat and buy my client a new house.  I had suggested that as that new asset was acquired, it was a good point at which to review his Wills and make a Lasting Power of Attorney.  

A Will would obviously deal with the disposal of his new property and other assets when he was no longer here.  The suggestion, however, that he should make a Lasting Power of Attorney was met with some surprise.  He had only ever considered a Lasting Power of Attorney to be something associated with managing the affairs of elderly relatives, not something which was needed by a bright, fit and active professional in the prime of his life.

A Lasting Power of Attorney is, however, important at any age.  In my practice here in the Wills and Probate Department at Benest & Syvret, I often see how fragile life can be. A significant change in circumstances and our ability to deal with even the most mundane of daily activities can happen in an instant.  Quite simply, tomorrow cannot be taken for granted.

Having a Will in places ensures that your wishes are honoured after your death and importantly makes matters for your family that little bit easier.  Equally important, however, is making provision in the event that you lose ability to deal with your affairs during your lifetime, should that ever happen.  That is when a Power of Attorney becomes important.

For clarity, there are two types of Power of Attorney.  An Ordinary or General Power of Attorney is often signed to be used in a property transaction, authorising a Solicitor or other professional to do something on your behalf, including going to Court to purchase a house.  Those General Powers of Attorney can only be used when you provide instructions for the Attorney to undertake that task.  If you do not have capacity to give those instructions, then the General Power of Attorney is of no use.

The second type of Power is a Lasting Power of Attorney, commonly referred to as an “LPA”.  That Power of Attorney can be established to kick in if you lose mental capacity to make decisions.  

There at two types of LPA, one for health and welfare decisions and the other for your property and financial affairs.  You can choose more than one Attorney, and you can choose different Attorneys to deal with your heath and welfare decisions and your finances.

Many people believe that if you are married, your spouse automatically has the right to make decisions about medical care if you are no longer able to make those decisions yourself.  That is not the case; whilst doctors might consult your spouse or partner about a medical care plan, ultimately decisions about your care might be made by a stranger.  With an LPA in place, aligned with an advance directive as to medical care in particular circumstances, you can be certain that decisions that you have made about your future care will be binding.

If an LPA is not in place and you lose capacity, an application to the Court to appoint a delegate to administer matters will need to be made, a potentially lengthy and cumbersome process. An LPA will mean that your Attorney can immediately pay or cancel bills in your name and administer your savings, pension or property.

The most important part of the LPA process is choosing an Attorney who you can trust implicitly.  Being an Attorney is a significant responsibility - they could one day have control of all aspects of your life.  Whilst it is an important thing to do, it is not a matter to be rushed.

Equally, whilst the LPA application form is available online, there are certain traps to the unwary if an application for an LPA is made in terms which are unclear or uncertain.  In the same way that it is important to have a Will drafted by a professional so as to ensure the wishes are accurately recorded, an LPA should be made with the assistance of professional advice.

An LPA works best when it is tailored to your particular circumstances.  You can choose powers to include or exclude and tailor the document to your particular circumstances.  

I have seen a very significant take up in the execution of LPAs by clients who are in their autumn years.  Like my young client who was off to buy his new house, however, the perception remains that this is not an item needed by those of younger years.  None of us know what tomorrow will bring, but with both Wills and LPAs in place, at least plans can be made for whatever does come.

To discuss any aspect of a Lasting Power of Attorney, contact Freya on 875875 or via freya.brennand@benestsyvret.com 

A Lasting Power of Attorney (‘LPA’) is a legal document that lets you chose trusted people (‘attorneys’) to make financial decisions or health and welfare decisions on your behalf. 

Property and Affairs LPA

This LPA relates to financial decisions such as running your bank accounts, paying your bills, making or disposing of investments or selling your home. 

You may stipulate that this attorney can act immediately once you sign the LPA and it is registered at the Judicial Greffe.  Alternatively, you may wish the appointment to come into effect only if you can no longer understand and make decisions. 

You may also chose whether or not you wish to give your attorney authority to take certain decisions for example to sell your home. 

Health and Welfare LPA

This LPA relates to decisions such as your medical treatment, where you live, your diet, dress or daily routine.    It only comes into effect should you lose the capacity to make those decisions yourself.   

You can choose whether this attorney may make decisions about accepting or refusing life sustaining treatment. Your attorney will be bound by the terms of any direction you may have given, which can be recorded in an Advance Directive. 

How many Attorneys should I appoint?

There is no limit on the number of attorneys you may appoint, though appointing several attorneys may cause practical difficulties. 

You may appoint an attorney to replace an attorney who is unwilling or unable to continue to act as your attorney, for example because they themselves have lost capacity to make decisions, have died, or the attorney was your spouse or civil partner and you are now divorced.   

Should I appoint my attorneys to act jointly or jointly and severally?  

Attorneys who are required to act jointly must always make decisions together.  If they cannot agree the decision cannot be made. 

If a jointly appointed attorney dies then the LPA is invalid, unless replacements attorneys have been appointed.   Where replacements are appointed they take over from the remaining joint attorneys, who no longer have any say in decisions that must be made jointly.   

A joint and several appointment provides flexibility as the attorneys may make decisions on their own or together. An added advantage is that where one of the attorneys can no longer act, and a replacement has been appointed, the remaining attorneys may continue to make joint and several decisions either on their own or with the replacement.   

The execution of an LPA is therefore an important step which requires careful advice to ensure that it is tailored to your specific needs. 

For further information on Lasting Power of Attorney and/or Advance Directives, please contact our team on 01534 875875 or info@benestsyvret.com

During the year ending 31st March 2019 there were 3,951 transplants carried out in the UK, from 1,600 donors.  Demand during this period outstripped supply.  6,186 people in the UK were on the waiting list for organ donation as at 21st November 2019.  

Jersey has taken a lead over England with the introduction of an opt out based system for organ donation, being introduced on 1st July 2019.  The opt out system means that unless you have recorded a decision not to donate, or are in an excluded group, you will be deemed to have agreed to organ donation. A similar system will be introduced in England in Spring 2020. 

Deemed consent does not apply to those who have not been ordinarily resident in Jersey for a period of 12 months before dying, or those who lack capacity to decide on the issue of organ donation. 

Where is the evidence that the opt-out system increases the number of transplants? 

Statistics gathered by NHS Blood and Transplant supports the view that a deemed consent system increases the number of people who opt in for organ donation.  Wales introduced the presumed consent system in 2015. The number of people who opted in for organ donation in Wales increased from 34% of the population in 2015/2016 to 40% in 2018/2019.  

In Spain, where the deemed consent system has been introduced for some time, there are currently 46.6 donors per million people in comparison with England, where the system has yet to be introduced and there are currently 24.4 donors per million people.   Evidence suggests however that it is not enough to introduce the deemed consent system into law. To see a significant increase this must be supported by an investment in public awareness. 

How do I opt in or out of organ donation?

To opt in or out you simply need to write down your wishes or inform family or friends.  A safer option is to register your preferences through the NHS Organ Donation Register (“ODR”) which can be found at www.organdonation.nhs.uk or call 0300 1232323.  The process is very simple and takes no more than a few minutes.  Medical practitioners have access to the ODR and so this is the only way to guarantee that your wishes will be taken into consideration. 

Can I appoint a person to make the decision for me?

If you cannot decide whether or not to opt in or out, it is possible to appoint one or more persons to make the decision on your behalf through the ODR. 

If I do not record my decision who will be consulted on the issue of donating organs? 

If you have not expressed a preference and your organs are suitable for donation, the Law sets out the categories of people who medical practitioners may consult on the issue. These include your blood relatives, your spouse, civil partner or co-habiting partner, step-parents or friends of long standing.