News and Insights
28 September 2016
To will or not to will?
Making preparations for your death has many advantages
Nobody likes to think about death, particularly their own. However, making preparations for your death has many advantages. The primary benefit is that you get to decide (within certain parameters set out by Jersey law) who you wish to inherit your assets. If you do not make a will, this will not happen, and the law dictates who will inherit from you and this will create a situation called an intestacy.
Another significant difficulty is that the law currently does not permit unmarried couples to inherit from each other without having a will, therefore the death of a partner is likely to cause considerable hardship and uncertainty.
In order to avoid an intestacy in Jersey it is necessary to make two wills, one for dealing with immovable property and one for dealing with movable property. A will of Jersey immovable property deals with land and everything built on it, leases for over 9 years, flying freehold property and the benefit of certain mortgages. A will of movable property deals with all other assets such as jewellery, furniture, bank accounts, shares (including those that relate to share transfer properties) and investments.
If you are domiciled in Jersey (a person’s domicile is in the place which they regard as home) and you die without a will (intestate) leaving a surviving spouse/civil partner and descendants, the surviving spouse/civil partner is entitled to the household effects, the first £30,000 of movable estate and half of the remainder. The descendants (children firstly) take the other half.
If there are no children, Jersey immovable property passes on intestacy to your spouse/civil partner. If you do have children your spouse/civil partner is entitled to an equal share to the property with each surviving child. If the property is shared amongst your spouse/civil partner and children, your spouse/civil partner is however also entitled to the life enjoyment of the whole of the matrimonial home (usufruit). If your spouse has pre-deceased you, your immovable property will be inherited by your children in equal shares.
If you are domiciled in Jersey, making a will of movable estate differs from how this is done under English law as certain forced heirship rights (‘légitime’) are given to your spouse/civil partner and your children which cannot be removed even if you make a will that ignores them. The surviving spouse/civil partner and children can claim against an estate if they have not been given their “one third share” (where there is spouse/civil partner and children) or their “two thirds share” (where there is either spouse/civil partner or children). The remaining third is freely disposable by will. Claims have to be made within a year and a day of the issue of the date of death.
A will dealing with your movable property should appoint someone to be your executor. An executor is responsible for administering the estate, i.e. collecting assets, paying debts and expenses and distributing legacies and bequests to the beneficiaries. If you do not do this, the Court will appoint someone to deal with the task. You may appoint a family member or a close friend, or a professional executor (i.e. a company dealing with the administration of estates).
Wills are not effective until they have been registered in the case of immovable wills or a Grant of Probate has been obtained in the case of a will of movable estate.
Unlike movable property, you may leave your immovable property to whom ever you like, and this, whether or not you are married. However, if you are married, your spouse /civil partner would acquire a life interest over on third of your immovable property. This is known as the right of ‘dower’.
If your house is held in joint names for you and the survivor, then upon your death it will pass automatically to the other joint owner without any need for a Will. There is however another form of joint ownership, in equal undivided shares, in which case ordinarily 50% of the property belongs to one and 50% to the other and in the event of the death of one joint owner, the 50% passes by will or on intestacy.
If you are domiciled outside Jersey the laws of your domicile will apply to movable property. If you own immovable property outside Jersey the laws of the country where that property is situated will generally apply.
As it is essential that wills are in correct form and properly witnessed (in order to be valid), you should always consult a lawyer to advise on and prepare your wills. There are no pre-printed will forms suitable for use in Jersey. Whilst the above is intended to be an accurate guide to the basic law of succession in Jersey, it is no substitute for seeking proper legal advice.
Once you have made a will you may change it as often as you wish. You can even cancel the entire document if you so decide.