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Wills and probate
What rules and restrictions (if any) govern the disposition of and succession to an individual’s property and assets in your jurisdiction?
Generally, there is testamentary freedom in the Bahamas. Nonetheless, there are a few exceptions that limit an individual’s ability to dispose of property and assets. In particular, a surviving spouse is entitled to reside in a marital home for his/her life after the death of a spouse. Also, a person who has been maintained by a deceased person may also have a claim in respect of the estate under the Inheritance Act (Chapter 116 of the Statue Laws of the Bahamas). Where an individual has not disposed of property in a will, the inheritance rules set out in the Inheritance Act will apply.
The principal legislation governing wills, succession and administration of estates are:
- the Wills Act (Chapter 115 of the Statute Laws of the Bahamas);
- the Inheritance Act; and
- the Probate and Administration of Estates Act 2011.
What rules and procedures govern intestacy?
Under the Inheritance Act, where a person dies intestate with a spouse surviving and no children, the whole estate goes to the surviving spouse. Where there is a surviving spouse and a child, the estate is shared equally between the spouse and child. Where the spouse survives with two or more children, the spouse inherits one half of the estate and the children share equally the remaining half share of the estate. If there are no spouse surviving and only children, the children shall share equally the estate. Where there is neither spouse nor child surviving but grandchildren, the grandchildren shall inherit the estate to be shared equally. If there is no spouse or lineal descendants of the deceased, the estate is shared by the parents of the deceased individual. If there are no spouse, no descendants and no parents, the estate is shared among, in order of priority, the siblings of the deceased, nephews and nieces, grandparents, uncles and aunts, cousins and thereafter, in default, any next of kin.
What rules and restrictions (if any) apply to the governing law of a will?
An individual in the Bahamas may create a will concerning movables located in the Bahamas. The Wills Act also provides that a testator, not domiciled in the Bahamas, may validly dispose of property in the Bahamas and designate the laws of the Bahamas to govern that will and disposition. However, if the person does not declare that the laws of the Bahamas shall govern his or her will, the law of the domicile might well govern the disposition of such property. Where the will is in respect of shares in a company incorporated under the laws of the Bahamas, the law of the Bahamas will determine its disposition. Immovable property is governed by the law of the place where such property is located.
What are the formal and procedural requirements to make a will? Are wills and other estate documents publicly available?
The formal requirements to make a valid will are set out in the Wills Act. The act requires that a person creating a will be at least 18 years old and of full mental capacity. The will must be in writing and signed at the end by the testator and at least two other persons as witness to the due execution by the settlor of the will. The act requires the testator and the witnesses to sign the will in the presence of each other. While wills might be registered, they (and other estate documents) are not publicly available.
Validity and amendment
How can the validity of a will be challenged? Can the will be amended after the decedent’s death?
The validity of a will may be challenged in the course of obtaining a grant of probate by an application made to the Probate Division of the Supreme Court. Such an application is generally preceded by a caveat challenging the making of a grant on the basis of a disputed will, which prevents a grant of probate being issued. The party challenging the will thereafter files an action setting out the nature and basis for the claim. A will cannot be amended after the death of the individual who created the will.
How is the validity of a will established in your jurisdiction?
The principles guiding the determination of the validity of a will was recently reviewed by the Supreme Court of the Bahamas in Moss v Moss  1 BHS J No93 and the Court of Appeal in Rolle v Ferguson (unreported, 2013). Both cases endorsed the principle settled in Barry v Butlin  2 MOO PC 480. In particular, when considering the validity of the will, the person putting forward a document as the last will of a deceased person will be required to establish the provenance of the document, and that it is the will of a free and capable testator. It will also be vital to determine the circumstances in which the will was created and whether any possibility of undue influence or manipulation exists. Where there are circumstances that call into question the creation or execution of the will, the court will require the questions or suspicions to be resolved. Failing any suitable resolution or explanation, the will is likely to be found invalid.
To what extent are foreign wills recognised? Do any special rules and procedures apply to establishing their validity in your jurisdiction?
Where a grant of representation is issued in respect of a foreign will by the appropriate authorities in certain jurisdictions outside the Bahamas, an application may be made to the Probate Division for a resealing of that representation. The process of resealing confers the same authorisation on the resealed representation as if the will had been originally processed in the Bahamas. The process of resealing of grants of representation is available to grants obtained in member jurisdictions of the Commonwealth of Nations, US states and any other country that the Attorney General may specify by order. In civil law jurisdictions, an application may be made under the Probate and Administration of Estates Act 2011 and the rules thereunder for a grant of representation on the basis of the document authorising an individual’s representation of a will or intestate estate from a civil law country.
Yes, there are rules and procedures for the resealing and civil law recognition process. Individuals applying for either form of representation in the Bahamas on the basis of representation obtained outside the Bahamas are required to give notice in a daily newspaper in the Bahamas, complete the forms and submit the documentation required by the Probate Division in support of the application being made. There are also filing fees (up to a maximum of $800) payable to the Probate Division attendant on the making of such applications.
What rules and procedures govern:
(a) The appointment of estate administrators?
In an intestate estate, the appointment of an administrator is made under the provisions of the Probate and Administration of Estates Act. In a will, a testator may freely determine and appoint executors and trustees. Where no provision for alternate executors is contained in the will, an administrator may be appointed under the Probate and Administration of Estates Act.
(b) Consolidation and administration of the estate?
The administration of an intestate estate is regulated by the Probate and Administration of Estates Act. Where a will has been prepared, the estate is administered in accordance with the provisions of the will.
(c) Distribution of the estate to heirs?
In an estate, the debts or creditors of an estate are required to be settled first. Thereafter, if a will exists, the heirs shall receive distributions in accordance with the terms of the will. If there is no valid will, the statutory intestate estate distribution dictated by the Inheritance Act will apply.
(d) Settlement of the decedent’s debts and payment of any taxes and fees?
The funeral, testamentary and administration expenses of the estate are given first priority. Debts and liabilities due to creditors are required to be paid prior to any gifts to beneficiaries under the will. Any provision of the will that purports to dispose of assets prior to satisfying the debts and liabilities of the estate are void under the laws of the Bahamas. Where the estate is insolvent, the priorities of debts and liabilities are determined under the provisions of the Bankruptcy Act (Chapter 69 of the Statute Laws of the Bahamas).
Are there any special considerations specific to your jurisdiction that individuals should bear in mind during succession planning?
The individual should consider carefully who will be designated as executor of the estate in the Bahamas. Where possible, a minimum of two persons should be designated to serve as executor of the will. To the extent that the individual has a relationship with a Bahamian trust company, such a company may, under the Probate and Administration of Estates Act, act as executor of the estate. Where an individual wishes to change or amend a will, such change or amendment may be done by a codicil to the original will.
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