Probate and Administration

What is 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)

Why is a Grant of Probate or Administration necessary?

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.

Who is entitled to a Grant?

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
Son or daughters
Parents
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.

Is there a time limit within which to apply for a Grant?

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.

How do you apply for a Grant?

There are two ways to apply for a grant:

In Person

By hiring the services of an attorney.

What forms are there?

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.

What documents are required for the application?

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 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.

Is there a court cost to obtain a Grant

The Fee to file the application is found in the schedule of fees in the Grand Court Rules 1995 (Revised).

What about stamp duty?

The stamp duty for certain documents are found in the Stamp Duty Law.

Where do I file the application?

You must file the application in the Probate Registry Civil Section at the Courts Office (Judicial Administration), Edward Street, George Town, where you will be required to pay the appropriate filing fee.

What happens after the application is filed?

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.

Why is it necessary to publish the application?

In order to give notice to persons wishing to show cause against the sealing of a grant; that no grant is to be sealed in the estate of the deceased without notice to the person who files a caveat.

What is a Caveat?

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.

What happens after publication?

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.

Small Estates:

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.

What is my responsibility after receiving a Grant?

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 estate supported by an affidavit. These accounts shall be open to the inspection of persons beneficially entitled.

Resealing of Foreign Grants

Applications can be made by persons who have obtained a grant of representation from foreign courts in respect of the estates of persons who died domiciled outside the Cayman Islands leaving assets or property within the Islands.

Resealing is a procedure by which a grant of representation obtained in another probate jurisdiction is sealed with the seal of the Grand Court which renders the foreign grant of like force and effect in the Islands as a grant made in the jurisdiction in which the original application was made.

It is a convenient and expedient procedure as it obviates the necessity of applying for a local grant which would otherwise be necessary.
The Probate and Administration Rules (2001 Revised) sets out the provisions for the grant of resealing

Application for Resealing

Once the primary matters are attended to, preferably by a local attorney, the application for resealing should be made by providing the following documentation and information:

certified copies of the foreign grant (which may include a will if applicable to the application);
the name and description of the applicant including the capacity in which he/she is applying; whether as executor, attorney etc.
a description of the foreign grant including the date of issue thereof; and
the court out of which the grant was issued (although foreign grants made extra-judicially will be accepted for resealing if the judge is satisfied that that is the normal foreign procedure).

Location of the Probate Registry

The Civil Registry at the Courts Office
Court Building
Edward Street
George Town
Grand Cayman

Open to the public 9:00a.m. to 3:00p.m., Monday to Fridays

Primary Sources

Cayman Islands

Probate and Administration Rules (2001 Revised)
The Succession Law (2004 Revision)

England

Form PA2 of the English Rules and Forms (Printed by Satelite Press Limited (6.95))
Tristram and Coote Probate Practice; Butterworth, London Dublin & Edingburgh, 1996