Managing Your Loved Ones Estate Part 1: Unlocking the Mystery of Probate

Barbadians often ask, "Which is faster: Grant of Probate or Letters of Administration?", "How do I get either?" and "Why would I need either?"

These questions show that there is a need for a better understanding of these crucial legal matters. These will be answered in a 3-part series. Today we will delve into the essentials of probate and why it is vital for managing a loved one's estate.

What is a Grant of Probate?

When someone dies leaving a valid will, they are said to have died testate. The deceased person is known as a testator for males and testatrix for females. A will is deemed valid where the person making the will is at least 18 years of age and of sound mind. The will is in writing and signed by the person making the will in the presence of two witnesses. Those two witnesses must also sign the will in the presence of the person making the will and in the presence of each other (Section 61 (1) and Section 60 The Succession Act Cap 249).

Once there is a valid will, the person named by the testator to carry out his wishes applies for a Grant of Probate. The Grant of Probate is a legal document which authorizes collection, distribution and management of the deceased’s assets as well as assets the deceased is entitled to.

Who May Apply for a Grant of Probate?

The person named by the testator to carry out his wishes is called an executor for males and executrix for females.

The executor must apply to the High Court/Supreme Court for a Grant of Probate. According to Section 18 of the Succession Act of Barbados (Cap 249), the court can grant probate to up to four executors. If more than one executor is named, they can apply together for the Grant of Probate or 1 executor may apply. If 1 executor applies, evidence must be produced showing that the other executors have been informed and they have either consented to 1 executor applying or they have renounced their right to apply.

f the deceased leaves a valid will but does not name an executor or the executor who is named is unwilling or unable to act, an application for Grant of Letters of Administration with Will Annexed instead of a Grant of Probate will have to be made. (This will be covered in a subsequent part).

How to Apply for a Grant of Probate

In Barbados, applications for a Grant of Probate are filed with the Probate Section of the Supreme Court Registry, typically through an attorney-at-law familiar with estate administration laws and procedures.

The application process involves several steps and documents. Filing the application involves submitting the Application to the Probate Section of the Supreme Court Registry with supporting documents. These include various affidavits and necessary paperwork such as:

1. Affidavit in Support

2. Affidavit of Search

3. Affidavit of Value

4. Affidavit of Attestation

5. Affidavit of Advertisement

6. Death Certificate

7. Original Will marked by the signatures of the executor and the legal assistant who witnessed it.

8. Affidavit of Delay if the application is filed more than three years after the deceased’s death explaining the delay. 

Why is Obtaining a Grant of Probate Important?

If Grant of Probate is not obtained, the assets of the testator are essentially “locked” in their name and nothing can be done.

This Grant of Probate authorizes the executor to manage and distribute the deceased’s assets as specified in the Will. Financial institutions and other entities require probate to release the deceased's assets, such as money in bank accounts, investments, and property. Probate ensures that all debts and taxes are paid from the estate before distribution to beneficiaries. It also allows the executor to collect assets, pay debts and expenses, and distribute the remaining estate according to the Will.

This is not intended to be legal advice. Individuals are encouraged to contact an Attorney-at-law to obtain advice regarding their specific situation.

 Kerrilyn Walters is an Attorney-at-Law who is also a certified educator.

 Letters to LEGALLY INFORMED can be sent to kerrilaw246@gmail.com