McGregor

A reader asks:

I am writing to enquire about the power my mother would have over land after my father died without leaving a will in 1988. My mother did not have joint ownership of the 13 acres of land that he had acquired. Is it possible for my mother to have procured a letter of administration without the knowledge or permission of her nine children? What would have been the process to do so?

Answer:

If the property was owned solely by the reader's father, her mother would have no direct right over the property after her father's death. However, when a person dies without leaving a will (i.e. intestate), an application must be made for a grant of letters of administration so that the deceased's estate can be wound up and the assets distributed.

The law prescribes the order of priority for applications to be made for a grant of letters of administration. The person who stands highest in that order of priority is the spouse of the deceased. Children are next in line and they are followed by parents, siblings, grandparents, aunts and uncles in that order.

First option

Given the fact that a spouse has the first option to apply for a grant of letters of administration, she/he does not need the consent of any child. Therefore, to answer the specific question asked by the reader, the mother would have been well within her right to apply for a grant of letters of administration without consulting any of the children.

This does not mean that the children could not have discovered that an application had been made. The process of obtaining a grant of letters of administration requires an application to be made to the court as well as an advertisement in a daily newspaper, such as The Gleaner. Such an advertisement would be notice to the entire world that the reader's mother had made an application for grant of letters of administration.

Once the reader's mother is appointed administrator of her father's estate, she becomes a trustee and will be responsible for administering the estate in a timely manner. The administration of the estate will include the payment of debts and taxes and the distribution of the assets to the beneficiaries in accordance with their entitlement under the Intestates Estates and Property Charges Act.

Under that act, a spouse is entitled to one-half or two-thirds of the residue of the estate, depending on the number of children the deceased had. If there is only one child, the spouse is entitled to two-thirds of the residue and if there is more than one child, the spouse will be entitled to one-half of the residue.

In this scenario, the reader and her siblings will be entitled to share one-half of the residue among them, while their mother will be entitled to the other half. However, the reader should be mindful of the fact that death duties will have to be paid in order for the property to be distributed among the beneficiaries.

There are also enquiries which the reader could make to the court to confirm whether her mother has made any application for letters of administration.