Will or no will. What’s the difference?

While the execution of a will brings numerous benefits infrequently and in the absence of a will, the beneficiaries of the deceased’s estate are left to wonder as to what will happen next.

In this short guide we will explain and contrast the implications to the estate when there is a will and in the absence of a will, and briefly explain the process that should be followed in each scenario.

“Letter of Administration” vs “Grant of Probate”

If there is no will, the lawful heirs will need to consent to the appointment of a suitable Administrator. This individual is usually either a close relative or a lawyer who has the specific expertise and knowledge to administer the estate.

The proposed administrator will then apply to the competent District Court and request the so called “Letter of Administration”. This document will allow the proposed Administrator to act as an Administrator of the estate and distribute the assets in accordance with the provisions of the Wills and Successions Law, Cap. 195.

In the absence of a will, the estate will be distributed following the provisions of the Wills and Succession Law which provides for 7 classes of lawful heirs in a hierarchical order of priority based on the degree of relation to the deceased.

On the other hand, if there is a will in place, the estate will be distributed in accordance with the wishes of the Testator and subject to the forced heirship provisions of the Law.

The will can (and indeed invariably does) specify who will be the Executor of the Estate. Once the Executor applies to the competent District Court and obtains the so called “Grant of Probate”, he will be able to act in the name of the estate and distribute same.

At that point, the Executor will be able to act in the name of the estate, gather the assets, pay all liabilities prior to distribution and distribute the assets in accordance with the directions of the Testator and in accordance with the provisions of Cap. 195 and Cap 189.

What are the specific duties of an Administrator?

This position comes with several responsibilities and obligations. In a nutshell, the intended Administrator must (non-exhaustively):

• Collect information about the assets and liabilities, including but not limited through searches done at the Land Registry and financial institutions
• Liaise with the Inland Revenue that will assess whether any taxes are owed
• Proceed to an official inventory which is then lodged at the Court and at the Inland Revenue
• Obtain Tax Clearance Certificates (different for each type of property)
• Satisfy any outstanding debts of the estate and pay any professional service fees
• Divide the estate between the beneficiaries
• Obtain and file signed declarations of the beneficiaries acknowledging receipt of their share
• Prepare and file with Court the so called “Final Accounts” of the estate. These accounts show a breakdown of how all the matters of the Estate were dealt with and enclose evidentiary proof
• Close the administration

How long does the process take?

Straightforward Administration of Estates and Probates are usually concluded within one (1) year.

Having said that, each occasion depends on its own circumstances.

Our Services

Our firm is a trusted leader in all matters involving the wills and successions law. Our dedicated and experienced team is fully qualified and acquainted in providing the following services:

• Will drafting / registering the will in Court
• Ensuring safe custody of the will
• Advising and assisting Administrators / Executors on all aspects of the administration process
• Advising and assisting beneficiaries as to their rights and interests,
• Preparing / filing all necessary documents for the Grant of Probate or the Letter of Administration
• Expediting the probate process in urgent cases
• Acting as Administrators / Executors