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An Executor or his female counterpart, an Executrix, obtains the right to distribute the Estate of a deceased person in one of four ways. Firstly, he or she may be expressly appointed in the Will. Secondly, where no such express appointment is made and under the terms of the Will one person or other is asked to carry out a wide range of critical tasks, it will be implied that the Testator wished that person to serve as Executor. In the language of the law he or she is an "Executor according to the tenor of the Will". Thirdly, where no one has been impliedly or expressly appointed as Executor, the Court may appoint one or more persons to serve in that capacity. Fourthly, a Testator may in his Will confer on a named person a power to appoint an Executor of his or her choice.

By contrast, an Administrator or Administratrix is appointed according to the terms of the Intestates' Estates Act. And this is done solely by the High Court. Such an appointment is required where the deceased has left no Will at all or has left a Will that is not treated as valid because, for example, one witness only, instead of the required minimum of two, has attested. This state of affairs is referred to as a total intestacy. But an Administrator may also be appointed by the Court where there is a partial intestacy. This occurs where the deceased has left a Will but has failed to dispose of all his property. The Act sets out an order in which relatives may lay claim to the property of the deceased. This begins with a surviving wife or husband, and is followed by the children of the deceased, parents, brothers and sisters, grandparents and, finally, uncles and aunts. In the event that these relatives die before the deceased, their children will take their share. Surviving relatives who have prior claim may apply to the Court for Letters of Administration to divide up the Estate of the deceased. It is normal for a relative to apply according to how high he or she is on the ladder in respect of claims to the Estate of the deceased. Further, where, say, four (4) of the deceased's children are ranked equally, any one or more may apply without obtaining the consent of the others. But, to avoid disputes that may tear the family apart, it is wise for an applicant child to inform the others of his or her intention to apply.

Executors or Administrators may not distribute the deceased's Estate as they please. Nor are they permitted to unnecessarily delay the division of the property among the beneficiaries. In one case, a sole Executor residing in London refused for 5 years to probate the Will or to send copies of it to the beneficiaries in Dominica. In another, the Co-Executors – a son and daughter of the deceased resident in the USA – delayed probate of a Will to prevent the Estate from passing to their mother for her lifetime, as expressly stated in the Will. Both feared that their mother might dispose of some of the income generated from the Estate to another of her children who was taking care of her in Dominica. There is the classic case of a Testator willing that, on one of his sons attaining the age of 25 years, one-half share of a 100-acre parcel of agricultural land should pass to him, and the other half to his bigger brother by 5 years. Big brother and the surviving wife were appointed Co-Executors. Little brother is now 50 years old and, despite his numerous protests, the Estate has still not been divided to allow him his half- share. Or, consider the story where the Co-Executors might after a grant of probate have quite easily obtained title to the Testator's Estate and transferred the gifts to the beneficiaries. Instead, they have chosen, 10 years thereafter, to not distribute the property but, rather, to lease parcels of it to a stranger on terms that bring no benefit whatsoever to one of the beneficiaries.

Under the law neither Executors nor Administrators are permitted to do these things. They have four clearly defined duties. The first is to take stock of what the assets, that is to say, the property of the deceased, are. The second is to call up and secure these assets. The third is to obtain a grant of probate or letters of administration, as the case may be. And the fourth is to distribute the estate, that is to say, the assets minus the debts of the deceased and the expenses incurred in administering their duties. Distribution must be done strictly according to the wishes of the Testator as expressed in the Will or, where no valid Will exists, according to the rules of intestacy, as stated in the Intestates' Estates Act. But, where the Testator has not left sufficient cash behind and some of his assets have to be sold to pay for funeral expenses, debts and costs of Administration, it stands to reason that gifts to beneficiaries would not be distributed exactly as stated in the Will.

The law does not force a person appointed as Executor to take up the appointment. So, a person who does not wish to act as Executor is entitled to renounce, that is to say, give up the position. This must be done before he or she takes any action in relation to the Estate. As long as an Executor renounces, he or she cannot withdraw the renunciation without the Court's permission. And once he or she has taken some action in relation to the Estate (for example, collecting debts owed to the Testator) and is thereby deemed to have accepted the appointment, he or she cannot renounce unless by permission of the Court. Only in exceptional circumstances will the Court grant such permission.

As to the timetable for administering the Estate, an Executor should seek to obtain a grant of probate as soon as possible after the funeral. In Jamaica application may be made seven days after the burial. Where a named Executor has not renounced and is slow in applying for probate, he or she can be compelled to make application. This is done by what is called a citation. An Executor is usually cited before the Court by a beneficiary under the Will. By this, the Executor is asked to apply for probate within a certain time period, failing which the named Executor will be removed and the person proposed in the citation to take his or her place will be appointed.

The fact that more than one Executor has been appointed, and there is disagreement among them, is a poor excuse for delaying application for probate. This is so because, in such a case, one or more of them may make application without the consent of the others. All that needs to be done is to reserve to the others the power to take probate whenever they or any of them may wish to. It is normal for the Executor or Executors seeking probate simply to give the others notice of intention to do so. And where a grant of probate is made in such a situation, the Applicant may go ahead and distribute the Estate among beneficiaries "as if all the persons named as Executors had concurred therein." An Executor to whom power has been reserved may later obtain a grant of probate called double-probate. This may be done either during the lifetime of the Executor or Executors who have taken the first probate, or after their death.

A personal representative may be penalized in ways other than by citation. He or she has a duty under the law to ascertain and collect the assets of the deceased as soon as possible. If this is not done, a beneficiary is entitled to sue him or her for negligence. Further, there is a duty to settle the debts of the Estate with due diligence, normally within a year after the testator's death. This time period is referred to as "the Executor's year." Where a personal representative has failed to pay outstanding debts from the estate, the Court might most probably call on him to make settlement out of his or her own pocket. Also, he or she will be held personally liable to creditors for wasting the assets of the deceased. And, as to distribution of the net assets among beneficiaries, a personal representative may postpone this in rare instances only. One such instance is where there is a case in Court against the Estate. As soon, however, as the Executor's year has elapsed, he or she may be compelled to effect the distribution.

In a nutshell, then, neither Executors nor Administrators are entitled to hold creditors or beneficiaries to ransom. They have specific and clearly defined duties to carry out. These, they must strictly follow. For failure to do so legal sanctions lie.

Copyright (c) William Para Riviere, July 2013