News and Insights
5 February 2020
Nobody likes to think about their death. However, it is important to understand the affect that your death will have on those that you leave behind.
Even if you die leaving a valid Will, there are situations where your spouse/civil partner and/or children can challenge your Will if they have not received a certain amount of your estate which the law states that they are entitled to. Please note, any reference to spouse throughout this article also refers to a civil partner.
Under Jersey law, there is a distinction between the two types of property. Your immovable estate consists of freehold land, flying freehold land and leases of over 9 years. Whereas, your movable estate is made up of cash, investments, jewellery, cars and shares. It is therefore common in Jersey for a person to make two Wills, each dealing with the two separate types of property.
People who are domiciled in Jersey (with an intention to permanently remain) enjoy a great deal of testamentary freedom to deal with their estate in the way they may wish to handle their assets. However, this freedom is limited in terms of movable estate. In Jersey, the law dictates that if the deceased made a Will without leaving your spouse and/or children a share of your movable estate, then they can make a claim against your estate within a certain time period.
If you pass away leaving a spouse and child behind, they are each able to make a claim for one-third of your estate. The remaining third can then be given to whoever you choose. If you die leaving only a surviving spouse, or only children, they are entitled to make a claim for two-thirds of your movable estate. Only then will the remaining third be free for you to leave to whoever you like. This is Jersey’s forced heirship law known légitime.
Despite the forced heirship provisions, many spouses choose to leave most of their estate to their surviving spouse and nothing to their children, until the surviving spouse passes away. However, it should be noted, children will not automatically be given the share of the movable estate to which they are entitled under the law and would have to make a legal claim for it.
Testamentary freedom in relation to Jersey’s immovable estate is much clearer. Aside from the right of a spouse to a life interest over one third of the matrimonial home, you are free to leave your immovable estate in whichever manner you desire. This is not the case if you own your property ‘jointly for the survivor’ as the surviving co-owner(s) will automatically inherit. In short, there is no légitime claim available against immovable property.
Having a Will in place is an important step, but as your circumstances change, it is important that you review your Wills to make sure they reflect your wishes. For example;
- If you marry or enter a new relationship;
- If you have children;
- If you acquire significant assets; or
- If one of your chosen beneficiaries dies.
In order to avoid a situation where the law decides who inherits your assets (an intestacy) it is necessary that both of your Wills are properly executed. This means that the Wills must be in writing, signed and witnessed correctly. Your Will of immovable estate will also need to be read aloud to you by a qualified witness such as an Advocate of the Royal Court. If these steps are not completed, your Wills may be invalid and the laws of intestacy will apply.
An intestacy occurs where someone dies without leaving valid Wills. In this situation, the law will dictate who will inherit your property (both movable and immovable). It is a common misconception in Jersey that only male heirs are able to inherit. This is not the case. In simple terms the law of intestacy will look towards your closest relatives such as your spouse and your children in the first instance before branching out to your siblings, parents and full-blood relatives. Unmarried couples, even if they have cohabited for many years, are not protected under the law and your surviving unmarried partner will not be entitled to any of your assets whether movable, or immovable upon your death.
In short, without valid Wills in place, the resulting effect on your estate could well be something that you did not intend.
Once you have made your Wills, they can be changed as often as you wish. You can revoke the documents entirely or only parts of them but be sure to seek expert advice before amending your own Wills as there are many legal factors to consider.
A Grant of Probate is a document issued by the court which gives your executor (the person appointed in your Will to deal with the administration of the will) the power to collect your assets and distribute them to your chosen beneficiaries in accordance with the terms of your Will. An executor can be a family member, a friend, a beneficiary or a professional such as a lawyer or accountant.
Your executor is only appointed to deal with your movable estate, and there is no equivalent role in your Will of immovable estate.
In Jersey, your chosen executor will be required to appear in-person at the Probate Registry to obtain the Grant. This is something which should be carefully considered when you make your appointment. Executors who live abroad should be able and willing to travel to take up this position. It is also worthwhile appointing an alternate executor in case your first choice is not able to take up the role.
Registration of Your Immoveable Will
Those who inherit your immovable estate do so upon registration of your Will of immovable estate in the Jersey Public Registry. Registration proves their claim to the property. For example, this can be for insurance purposes or if they later wish to sell the property.
A Will is an important document and can bring guidance to those who are dealing with the consequences of your death. If you don’t have one, you probably should! If you would like to discuss your Will, our knowledgeable team at Viberts are here with you every step of the way.
Published in 20/20 Magazine - Annual 2020 p48-49