Property ownership in Gibraltar was once not common in Gibraltar. Since the 1990’s this has changed quite dramatically and many
people now own their own homes, mostly as leaseholders. The majority have mortgages over their properties. If you own property it is therefore particularly sensible to have a Gibraltar will in place and if you purchase a new property you should seek advice as to whether it would be advisable for you to make a new will. Within your will you will make provision for the distribution of your estate when you die. Having a will can also make the administration of your estate a simpler affair.
When an individual dies an application for probate usually requires to be made before the estate of the deceased, which may include property, bank accounts or insurance policies, can be accessed by anyone, even by the family of the deceased.
An application for probate can take two forms:-
Application for Grant of Probate
This application is made when the deceased had in place before his death a valid local will. The will indicates to whom the estate should be distributed and also nominates an executor or executors. The executors are those individuals appointed by the deceased to have the responsibility for administering the estate, or in other words put simply means gathering in the assets, paying off any debts due and then distributing what is left according to the wishes of the deceased as set out in his will. The role of the executor is therefore a very important and responsible one. Therefore many people choose, within their will, to appoint a lawyer to be their executor.
Before the executor can administer the estate however, he, and only he normally, can and must make the application for Grant of Probate to the Supreme Court. The application involves the filing of certain specific documentation together with evidence of the death in the form of a certified death certificate. When the application is filed a court fee is payable on a sliding scale according to the total value of the Gibraltar estate, no fee being payable where the estate is valued at under £20,000.
It is also worth noting that no death duties are payable in Gibraltar.
If the application is successful the court will issue what is essentially a certificate, the Grant of Probate, stating that the Will has been proved and registered in the court and that the administration of the deceased’s estate has been granted to the executor. A copy of the will is attached to this certificate.
The executor may then administer the estate according to the wishes of the deceased which are contained in his will.
Application for Grant of Letters of Administration
When a person dies without having made a Will or makes a Will which is not valid perhaps because it was not made correctly, this is known as having died ‘intestate’.
In this scenario, the court will grant to a proper person or persons (but no more than four people) an authority under the seal of the court, called Letters of Administration. The application is similar to that described above and seeks to have an administrator(s) (rather than an executor) appointed over the estate of the deceased. The powers and duties of the administrator are similar to those of an executor. Anyone however cannot apply to be the administrator. There are rules which stipulate who can apply and in what order of priority they can apply. The order of priority of appointment follows that of the persons entitled to benefit from the intestate estate, namely, the surviving spouse, children, father and mother of the deceased, etc. Sometimes a creditor may be appointed where for instance the estate is insolvent or in other words there are insufficient assets to pay off all the debts and liabilities of the estate.
As with the application for Grant of Probate, the application for Grant of Letters of Administration involves the filing of certain specific documentation together with evidence of the death in the form of a certified death certificate. A court fee is payable on the same sliding scale as described above.
If the application is successful the court will issue the Grant to the administrator which may then be used to administer the estate of the deceased.
With either application whomever the court appoints will be expected by the court to carry out their duties diligently and carefully, and to ensure that their duties are carried out in the best interests of the estate. They are accountable and personally liable to the court if they fail in their duties.
Application for Grant of Letters of Administration (With Will Annexed)
We at Isola & Isola also represent the families of deceased persons who are nationals of one country, live in another country, but have assets in Gibraltar. This procedure can be rather complicated and lengthy and involves the filing at court of various specific documentation.
We would always recommend that such individuals consider taking advice on making a local Gibraltar will to cover their Gibraltar assets only as having a local will in place can make the court procedure quicker and simpler.
This article is intended to give guidance only. Specific legal advice should be taken where appropriate.