In a previous article we talked about who had the right to inherit and apply for the right to divide the estate and how much of the estate each of the named heirs were entitled to inherit.
This article will ggive yoou a step by step guide on what you need to considerr and do iif you have been named an executor under a Will or if you believe you caan apply to the court for the estate of a person who has died with no Will. You will therefore either be applying for probate of a Will or a ggrant for lletters of administration four someonee dying without a Will. Either way, before applying for either probate of the Will or grant for letters of administration you will need to gather certain important information about the estate to file with the Registry. You can either do this yourself or you can hire a lawyer to do it for you. In Vanuatu most applications are filed in person and not by lawyers. It is a very simple, easy and quick process once you are able to get all the paper work together before filing.
The Rules to be followed for filing this type of application before the court are to be found in the Probate and Administration Rules, Chapter 270 of the Laws of the Republic of Vanuatu.
Whether or not a probate or grant is needed
Your first step is to find out whether you will need a grant of probate, that is, a grant given by the court based on whether the deceased has died leaving a Will or whether you need a grant for letters of administration, that is, a grant given by the court where the deceased has died leaving no Will. Section 50 of the Queen’s Regulations No. 7 of 1972 provides, that if the deceased leaves the amount of AUD$400.00 or less or approximately VT34,000 in any bank, then, if probate or letters of administration have not been produced to that bank within four (4) months of the death of the deceased nor any notice of a Will or intention to apply for letters of administration given to that bank during that four month period the bank may, after fourteen (14) days’ notice in writing to the court pay that sum of money to any person, who appears, to the satisfaction of the manager of the bank to be the person who would be entitled to inherit that money and shall pay that money out to that person and no other person may later come forward to make a claim against the bank.
Also, if the deceased left land held in joint proprietorship only then the surviving proprietor or owner will inherit and no application for a grant will be needed. The surviving owner need only appear before the Registrar of Lands to have absolute title passed over to them upon proof of death of the deceased.
If you are in any doubt as to whether you need a grant or still need to apply for a grant then it is best to seek legal advice from your lawyer or the public solicitor’s office.
Value the Estate
Whether it is a grant of probate or letters of administration you need to have the entire estate valued before making your application as this needs to be included in your application to the court. A valuation will also determine whether you will need to pay a filing fee with the court as that is determined by the value of the Estate.
You will need to go through the deceased’s paperwork to know what assets he owned and debts he owed at the time of his death. The Land Registry should provide information on all the leasehold titles owned by the deceased and any registered debts such as mortgages. Seek out the help of any estate agent or valuer to provide a written valuation report. You should also request a search at the Supreme Court for any judgments that may have been given against the deceased which you would have to list down as a debt. Likewise, if there are any judgments that were given in favour of the deceased which would be listed as an asset to be collected on behalf of the estate for later distribution.
If you are able to get bank statements then that would also be useful but the writer is aware that the bank’s no longer release such information without a court order following the filing of an application. It would be enough for the time being then just to determine whether the deceased had any bank accounts. Find out whether the deceased was entitled to any VNPF pay-outs, life insurance pay-outs etc.
Therefore your job is to pull together all the assets and liabilities of the estate so the court will know what is to be distributed among the heirs and what debts are to be paid off.
In summary, the estate valuation should include:
- Assets – leasehold titles, movable belongings such as jewellery, cars etc, money in bank accounts including joint accounts, pensions, insurances, company shares, judgments;
- Debts and liabilities – mortgages, loans, credit cards, judgments, unpaid bills, funeral expenses, cheques written before death which remain uncashed.
The amount of work involved in valuing the estate will vary depending on the size of the estate. It is important to get this right as it could potentially delay your application before the court for months if this process appears incomplete to the court and the court is forced to keep coming back to you to ask for more information.
Documents to be included in application
The number and types of documents needed may vary depending on the content of the application but there are basic documents which must always be exhibited to your application for the court if you are applying for letters of administration. They are:
- Death certificate from Civil Status Registry;
- Civil Marriage certificate or Custom marriage certificate from Malvatumauri Council or other proof of custom marriage if deceased was married;
- If spouse dead then death certificate of spouse;
- Birth certificates for all children of the deceased;
- If any child is adopted civilly or in custom then proof of the adoption;
- If parents of deceased or any other relatives of deceased claiming a right to inherit then birth certificate of deceased along with birth certificates and any other civil status documents that will prove the biological connection between the deceased and those claiming as heirs;
- If spouse not applying but alive then letter of consent signed before a commissioner of oath that approving of person making the application;
- If a child of deceased applying then letters of consent from all other siblings that they are aware of the application and consenting to it;
- List of all the assets with approximate valuations and liabilities of the deceased. Attach land valuation from certified valuer.
If applying for a grant of probate then you need only attach to your application the documents at 1 and 9 above as well as a copy of the Will.
If for any reason you are unable to provide an important document to the court then you must say why in a sworn statement and ask whether any other proof would be acceptable to the court.
If you have a Will to probate but the executor named in the Will does not wish to act or has died or his mentally unable to act or if a part of the deceased estate does not specify to whom that part is to go, example, something acquired by the deceased shortly before his death or which he was unaware which he owned at the time of his making his Will you will have to apply for letters of administration with Will annexed. You will do so using Form 6 also filing with it a sworn statement and inventory.
Completion and filing of forms
The forms to be used can be found under Schedule 1 to the Rules mentioned above. A copy of these forms can be obtained from the Supreme Court. Application for grant of probate is to be made in Form 1 with a sworn statement attached together with the inventory of the property or assets of the deceased. While the form does not specify that liabilities be listed the writer is aware that the court does tend to ask for this information. For a grant of letters of administration application is to be made in Form 3 also with sworn statement attached together with an inventory of property or assets of the deceased. You should also include the liabilities of the deceased in this inventory.
Make sure that all the information put into this application is correct and that you have included everything you need the court to know. It is an offence to swear a statement before the court containing information you know to be untrue or to omit vital information. Doing so can cause you to be fined or imprisoned. If there is anything in addition to what is in the form you wish the court to know please make sure it is fully explained in your sworn statement. If the court asks for additional information or documents then it must come to the court by way of a sworn statement attaching any relevant documents for the court’s attention.
Everything you put in your sworn statement must be able to be proved by documents which you submit to the court or by sworn evidence filed with your application. If there is information missing or an incomplete application the consequence will be that either your application will be delayed or it will be dismissed. Doing it right the first time will save you time and money.
Your application must be filed in duplicate, that is, one copy will be kept by the court and the second copy returned to you for you to keep.
Cost to file
Schedule 2 to the Rules state that there will only be a filing fee with the Supreme Court if the estate is valued at VT500,000 or more. The fee then will be VT50, 000. Anything less than VT500,000 will mean you will file your application for free. If you do not have the money to file the Registry will not accept your application until you do.
What happens after you file
After you have completed your form, had your sworn statements signed before the commissioner of oath and paid your filing fee, if required, your file will then be passed to the Master of the Supreme Court who has the authority to approve your application. The Master as the writer is aware deals with all the applications without a hearing unless it is necessary to have a hearing with parties present. Because you are not appearing in the court this is why it is necessary to make sure all the information is before the Master for her to make a quick decision. If the Master requires anything more from you an order will be sent out to you asking you for what is needed. If nothing more is needed from you then the Master will give you permission to now advertise under the rule. The order will give you the instruction on what to do. If you are unsure the writer’s experience with this court is that the Master’s clerk will be happy to clarify what you need to do. The Master’s office will also give you an order to take to the Banks to find out if the deceased had any accounts with them and if so how much money is held in those accounts.
Once you have done the advertisement which should be in Form 7 you must file a sworn statement with the court attaching the advertisement sent out over the radio or in the newspaper together with receipt. Once the court approves the advertisement there will be an additional waiting period of 28 days to see whether anyone may object to your application. If there is no objection then the court will make its final order granting you probate or administration. If there is an objection then the court will list the matter to hear the objection and will give specific instructions on what everyone needs to do.
Note:This article cannot provide for every scenario that may arise in the course of you filing an application with the court but once you follow these basic principles you should have little difficulty. If you need anything more the court will always ask.
BUT, under no circumstances should you file an incomplete application or without at least the basic documents listed above or else the court may simply dismiss your application and you could lose your fee of VT50,000. You will not be able to reclaim it from the court and if you choose to refile then you would have to find another VT50,000 to do so.
SO BE SMART AND DO IT RIGHT THE FIRST TIME AROUND.
DISCLAIMER – This is a legal column to provide basic information on the law and court procedure. It is not to be used as a substitute for legal advice but to be used only as a starting point in understanding what you might need and what you might need to do.