Do I need a Grant of Probate or a Grant of Letters of Administration when a person dies?

When a person dies, they leave their possessions behind. These possessions form what is called an estate. The estate can comprise of several things including: property, money, other assets, debts and liabilities. Upon their death the estate must now be administered and distributed.

According to the Administration of Estates Act, upon the death of a person all his estate real and personal, – within Trinidad and Tobago shall vest in law in the Administrator General until the same is divested by the grant of Probate or Letters of Administration to some other person or persons. Real property is considered as land and anything permanently attached to it, while personal property is movable possessions, such as furniture, vehicles, and jewellery, etc.

In Trinidad and Tobago, to administer the estate of a deceased person one must first obtain the necessary grant of representation which is issued by the Probate Registry of the Supreme Court of Judicature.

These grants of representation are governed by legislation, namely:

• Wills and Probate Act (Ch. 9:03);
• Administration of Estates Act (Ch. 9:01) and;
• Trustee Ordinance, Chap. 8 No. 3.

Grants of representation can be issued in common form (where there is no dispute amongst beneficiaries or any parties) or in solemn form. The Probate Registry is the court office for the Supreme Court where all probate Court documents are filed and processed.

There are different types of grants of representation which can fall into either of the following categories:

• Grants of Probate;
• Grants of Letters of Administration with the Will annexed;
• Grants of Letters of Administration;
• Second or subsequent grants.

The two most common types of grants are: Grants of Probate and Grants of Letters of Administration.

The personal representative of the deceased’s estate is the person who administers his estate.  This person is called an executor (male)/executrix(female) when there is a Grant of Probate.  Whereas with a Grant of Letters of Administration, the personal representative is called an administrator (male)/administratrix (female). The roles of the executor and the administrator are similar. They are both responsible for gathering assets, paying debts, and distributing the remainder/ residuary estate.

A Will is a legal document that states what an individual wants to happen to their property and belongings after they die. Generally, when a person dies leaving a Will behind, they are considered to have died Testate and the appropriate grant to be sought by their executor will be a Grant of Probate. This grant is issued for estates with a valid Will, to the named Executor to manage assets. The law states that a grant of representation, whether a Grant of Probate or a Grant of Letters of Administration, shall not be granted to more than four persons in respect of the same estate.

… The deceased person is referred to as the Testator. The Executor is appointed/chosen by the Testator and distributes the estate in accordance with the instructions of the Testator. Alternatively, when a person dies without leaving a Will, the deceased is considered to have died Intestate and the appropriate grant to be sought by their Administrator will be a Grant of Letters of Administration. This grant is issued for estates with no Will or where there is a Will but the named Executor is unable to act, for any reason. This grant of Letters of Administration is issued to the next-of-kin (spouse, children, or nearest closest relative) to distribute assets according to the law.

The Administrator does not have a Will to follow for guidance. The Administrator distributes the estate in accordance with the rules of intestacy, which are legal guidelines that determine how a person’s estate is to be distributed prioritizing a strict hierarchy, ensuring assets go to the nearest kin in a specific order as set out in legislation. Unlike an Executor who can take steps to preserve the assets of a deceased person prior to obtaining a Grant of Probate, an Administrator cannot take similar steps prior to obtaining a grant of representation.

Ultimately, notwithstanding the differences, neither grant is superior to the other. They are both effective in achieving the goal of distributing the estate of the deceased. The key difference is authority and appointment. Where a person wishes for their assets to go to specific persons, they should prepare a Will, because failure to do so will result in the need to obtain a Grant of Letters of Administration.  In a simple Grant of Letters of Administration there is no flexibility with distribution, assets will be divided strictly in accordance with the rules of intestacy.

 

Submitted by: Rolana Cuffy-Bernard

Legal Officer

Civil Legal Department

Legal Aid and Advisory Authority

23 Stanmore Avenue, Port of Spain.

Contact: 638-5222

Email: [email protected]

Website: www.laaa.org.tt

This article is not legal advice. Consult an Attorney-at-law for legal issues.