When a person dies without leaving a Will, what happens next? It is important to dispel the misconception that anyone can claim a right to the deceased’s possessions based on being the first to assert such claim, or due to close kinship. In Jamaica, the law concerning intestacy is set out by the Intestates’ Estates and Property Charges Act (the “Act”). The Act speaks to the distribution and administration of the deceased person’s assets, and works in conjunction with other statutes like the Administrator-Generals’ Act, the Property Rights of Spouses Act, and the Status of Children Act. 

What is Intestacy?

Intestacy occurs when someone dies without leaving a Will, this is also known as total intestacy.  Partial intestacy may also occur, where a valid Will was made, but not all of the assets or interests of the deceased were disposed of under the Will. Someone can also have their estate accidentally fall into intestacy, where a Will was made but it is deemed invalid in law by being improperly executed, or failing to meet other requirements of a valid Will. 

Persons eligible to benefit on Intestacy 

The Act dictates the classes of persons/relatives, and other persons who inherit an intestate’s assets. The Act sets out an order of priority as to the scheme of distribution indicating specifically, the eligible beneficiaries who take the “residuary estate” of an intestate. The residuary estate refers to the beneficial interest in the deceased’s property after deducting funeral/administration expenses, debts, and liabilities.

The established sequence for determining the hierarchy of individuals entitled to inherit under intestacy laws commences with the surviving spouse of the deceased. This spouse could be either the surviving husband or wife, or the surviving partner in a common-law marriage. After the spouse, the subsequent order of precedence is as follows:

  1. a) Children;
  2. b) Parents;
  3. c) Other eligible relatives, which include siblings, grandparents, aunts, and uncles; and
  4. d) Bona Vacantia- which is the term for an estate without an apparent owner, in which case the assets will most likely go to the Government of Jamaica. 

It is of note that the primary beneficiaries are the surviving spouse and the children, and once they survive the deceased, no other class of beneficiary can benefit. 

Table of distribution

Let us now delve into the table of distribution, which provides the sequence and proportions in which the intestate’s relatives may inherit under the Act. This sequence is linear, and the Act only recognises, without exception, a subsequent category of persons if the higher category fails. 

Surviving Spouse

The surviving spouse takes:-

  1. a) personal chattels absolutely (to include all furniture and effects except those used by the intestate at the time of death exclusively or mainly for business purposes and money);
  2. b) the greater of J$10,000 or 10% of the net value of the estate together with interest at a rate of 10% until this sum is paid (as of the date of death);
  3. c) All of the “residuary estate” except where there are children. If there is;
    • i. one child, the surviving spouse inherits 2/3 of the residuary estate
    • ii. more than one child, then the surviving spouse inherits 1/2 of the residuary estate; and
    • iii. 2/3 of the residuary estate where there are no children but there are parent(s) of the intestate.

Children
Next in line are children under 18 years old whose share is held on trust until they attain the age of majority. As mentioned above, if there is a surviving spouse, the child or the children share only in a portion of the estate. However, if there is no surviving spouse, the children are entitled to the entire residuary estate, absolutely, in equal shares. 

Parents
The parents of the deceased person are next in line to inherit, but only if there are no children. They share the remaining estate with the surviving spouse if there is one, after the spouse’s share has been accounted for. If there are neither children nor a surviving spouse, the parents inherit the entire remaining estate.

Other relatives 

If there is no spouse, children, or parents, the residuary estate devolves to the other relatives in the following order, (to be held under statutory trusts for them): 

  1. a) Full brothers and sisters 
  2. b) Half brothers and sisters 
  3. c) Grandparents 
  4. d) Full uncles and aunts 
  5. e) Half uncles and aunts 

Bona Vacantia 

All the residuary estate goes to the Government of Jamaica where the deceased has left no surviving relatives, or where any of them defaults in taking an interest in the estate.

Application for Letters of Administration 

In cases of intestacy, a court application is needed to obtain a Grant of Letters of Administration (the “Grant”), which allows for the settlement of the deceased’s estate and distribution of assets. As there would be no appointed Executor of the estate, the Act determines the order of priority for those eligible to apply for the Grant. The sequence for application aligns with the previously mentioned order, being, firstly, the surviving spouse, followed by children, then parents, siblings, grandparents, and finally aunts and uncles. If the surviving spouse does not wish to apply, or there is no surviving spouse, the children of the deceased are next in line to apply, and so on.

It is important to note that if the deceased’s residuary estate is valued over J$1,000.00, and a minor is due to inherit a portion, the Administrator-General is typically required to seek Letters of Administration unless the court finds another suitable candidate. In this case, the chosen Administrator of the estate will need to engage an attorney to proceed with the application.

if you fail to leave a Will setting out how your estate is to be handled, quite simply, the law will decide. Will Intestacy have the final say in your estate?