If a person dies domiciled outside Jersey owning assets in Jersey in their sole name, article 19(1) of the Probate (Jersey) Law 1998 provides that a Jersey grant must be obtained.

Article 19(2) of the 1998 law provides that a Jersey grant is not required if the value of the Jersey assets are less than £10,000. However, it is left to the individual institution’s discretion whether they insist on a Jersey grant being obtained. In cases where a person dies domiciled outside Jersey and the UK, Jersey institutions will often still insist on a Jersey grant being obtained.

If a person takes possession of, or deals with the Jersey assets without a Jersey grant having first been obtained, article 23 of the 1998 law provides that person ‘shall be liable to a fine or to imprisonment for a term not exceeding 12 months, or both’.

There is a general school of thought that if there are Jersey assets, a Jersey will should be prepared. This is not always the case, however. If the Jersey assets are held in trust, or held in joint names with another, the assets do not form part of the deceased’s estate. In both cases, a Jersey grant will not be required, so there is no need for a Jersey will.

If a person dies domiciled in the UK and a UK grant has already been obtained, an application for a Greffier’s Certificate of Jersey grant of probate, or letters of administration (if the person died intestate) can be applied for. The certificate is obtained through the ‘fast-track’ procedure and, as the name suggests, the certificate can be obtained quicker and at less expense than applying for a Jersey grant. In the case of a UK domiciliary, therefore, a Jersey will is not always recommended.

If there is a Jersey will, the fast-track procedure is not available. An application for a Jersey grant will instead have to be submitted. Add to the cost of this application the cost of having the Jersey will prepared in the first place and often the combined cost exceeds the costs associated with the fast-track procedure. However, a Jersey will may be appropriate if, for example, the UK domiciliary wants different beneficiaries to inherit the Jersey assets, from the beneficiaries named in the ‘UK’ will, (or the beneficiaries inheriting under the applicable intestacy rules), or, if it is desirable for the Jersey assets to be obtained prior to the ‘UK’ grant being obtained, perhaps for UK inheritance tax purposes.

There are circumstances in which a Jersey will is always recommended. We would always advise people domiciled outside Jersey and the UK, owning assets in Jersey, to have a Jersey will prepared. The fast-track procedure is not available for non-UK domiciliaries. The Jersey will will deal with the assets situate in Jersey only and will work with any other will or wills the person has in place dealing with their assets situate outside Jersey.

If there is no Jersey will the application for a Jersey grant cannot proceed until the grant of probate, or grant of letters of administration (or equivalent) has first been obtained in the deceased’s country of domicile. If, for example, a person died domiciled in South Africa, letters of executorship must first be obtained in South Africa; in Chile, the certificate of Actual possession; and in the United Arab Emirates, the certificate of inheritance or certificate of heirs. In cases where there is no requirement to obtain a local grant, perhaps because there are no assets in the country of domicile requiring a local grant, an affidavit of foreign law must instead be obtained. A lawyer practising in the country of domicile prepares the affidavit. The affidavit confirms who is entitled to inherit and administer the estate under local law.

Once a court-sealed and certified copy of the local grant (or affidavit) and the death certificate have been obtained, together with official translations of any documents not in English, the person or persons entitled to administer the estate must also sign a power of attorney formally appointing a solicitor in Jersey to act on their behalf and apply for a Jersey grant.

The application is more involved than the fast-track application discussed and the costs involved are significantly higher. A Jersey grant may also take months, even years to obtain. We have seen cases where it has taken up to 10 years for a local grant to first be obtained in the country of domicile. There is also the additional delay in posting and receiving documents between countries and particularly, if documents are coming from a troubled country like Zimbabwe, for example, the frustration of having to contend with documents being ‘lost’ in the post. In the meantime, the Jersey assets are frozen which can cause considerable upset for family members and perhaps also financial hardship.

If the deceased has a Jersey will in place, the Jersey executors can proceed to apply for a Jersey grant as soon as the executors have obtained a copy of the death certificate. The Jersey will allows the Jersey assets to pass to the intended beneficiaries a great deal quicker, in a straightforward way and at a greatly reduced cost.

Janina Porter is an English solicitor in the probate and estates department at Voisin in Jersey. www.voisinlaw.com