An individual domiciled outside Jersey should generally make a will covering the disposition of his or her Jersey assets on death, but the precise needs of any one person will depend on individual circumstances.
This update answers some of the more common questions asked by people not domiciled in Jersey, but who have assets in Jersey and are concerned about how their estate will be distributed.
What is domicile and why is it important?
As far as wills of movable property (personal estate) are concerned, the law of an individual's domicile is paramount. Under Jersey law, the rights (if any) held by an individual's family to certain proportions of that individual's personal estate (ie, an aspect of 'essential' validity) are governed by the law of that individual's domicile at the date of his or her death. In certain circumstances, the laws of the country of the individual's domicile at death may determine whether the individual's will has been properly executed (ie, 'formal' validity). Formal and essential validity are discussed towards the end of this section.
Domicile is the connecting factor that links a person to a particular legal system. The concept of domicile is a complex issue, but in its most general sense it may be described as a person's permanent home. It is not the same as residence or ordinary residence, although these are factors that may be considered when determining a person's domicile.
A person's domicile will fall into one of the following three categories:
- Domicile of origin – this depends on the domicile of either parent at the time of an individual's birth, not on where the individual was born or on the parents' residence at that time. Generally, a legitimate child takes his or her father's domicile and an illegitimate child takes his or her mother's domicile. Further, although a domicile of origin may be replaced by either a domicile of choice or a domicile of dependence, should either be lost a person's domicile of origin will be revived.
- Domicile of choice – a domicile of choice is acquired if a person moves to a jurisdiction with the intention to remain there permanently. It is therefore acquired by a combination of two things, which must coincide:
- actual presence or residence in a country; and
- the requisite intention to reside there permanently.
- Domicile of dependence – a minor (ie, a person under the age of 18) has a domicile of dependence (generally that of his or her father), unless one is dealing with the grant in and distribution of the movable estate of a deceased minor, whereupon the deceased minor can have an independent domicile if he or she has reached the age of 16 years old or married under that age.
In the past, a woman adopted the domicile of her husband once she was married. Now, for the purposes of the grant in and distribution of the movable estate of a deceased woman who has at any time been married, the deceased woman's domicile will be ascertained using the same factors as any other individual capable of having an independent domicile.
A person's domicile remains important even after a will is made. As indicated above, the testator's domicile at death governs the validity of a will of movable property (ie, a personal estate). Therefore, once a will of movable property is made and complies with the law of a person's present domicile, should that person change his or her domicile, he or she must ensure that his or her will is essentially valid under the law of the new domicile.
What does formal validity mean?
Among other things, formal validity relates to:
- the manner in which the will should be signed;
- the number and capacity of witnesses; and
- whether the will should be dated.
It is vital that wills be executed properly; otherwise, they may be ineffective. Under the Probate (Jersey) Law 1998, courts will treat a will of movable estate as properly executed if, at the time of its execution or at the time of death, its execution conforms to Jersey law or the internal law in force in the territory:
- where it was executed;
- where the individual was domiciled;
- where the individual habitually resided; or
- of the individual's nationality.
What does essential validity mean?
Essential validity relates to fundamental issues (eg, whether an individual can make a will in the manner in which he or she would like, or at all). For example, some jurisdictions may require that a testator leave a certain part of his or her assets to a surviving spouse or child. If the will is not essentially valid, it may be open to challenge (eg, by a disgruntled family member).
What is movable property?
Jersey law distinguishes between movable property and immovable property. Broadly speaking, immovable property consists of freehold land and buildings, together with their permanent fixtures and fittings. Movable property is everything else and includes such items as money, furniture, jewellery, cars and paintings, as well as intangible assets such as shares (including shares of a property-holding company, through which ownership of shares guarantees occupation of a particular flat or unit), and insurance policies. Movable property is also sometimes referred to as personalty, movables, movable estate or personal estate.
Why make a will strictly relating to movable property situated in Jersey?
The effect of dying intestate is discussed generally below. Although it is possible to make a will that covers worldwide personal assets, it can be beneficial to make separate wills for personalty situated in separate jurisdictions. For instance, this may make it quicker to obtain probate, so that assets are released as soon as possible. It may also be possible to gain tax advantages, although specialised advice should be sought on this matter.
How to make a will for movable property situated in Jersey
A lawyer can draft this. However, as the essential validity of a will of movable property will depend on the law of the specific domicile, individuals should contact a lawyer where they are domiciled to ensure that the will of movable property conforms to the laws of that jurisdiction.
What is an executor?
The executor is the person or organisation appointed within a will to gather in the estate and, in due course, distribute the same. Individuals should inform the person that they are appointing as executor of the appointment. Individuals should also inform the executor where the original will is located.
What happens upon death?
Upon death, the executor will gather in the estate, pay debts and, in due course, distribute the remainder of the estate. Before the executor may do this, it is generally necessary to obtain a grant of probate in Jersey; certain formalities are required in order to do this. Once the grant of probate has been issued, the executor is free to deal with the estate's Jersey assets.
What is immovable property?
Jersey law distinguishes between movable property and immovable property. Broadly speaking, immovable property consists of land and buildings, together with their permanent fixtures and fittings, as well as certain rights in and over land. Immovable property is also sometimes known as realty, immovables, immovable estate or real estate.
Which law governs Jersey immovable property?
As far as wills of immovable property are concerned, the law of the jurisdiction in which the property is situated is paramount. Therefore, Jersey law governs the formal and essential validity of wills in respect of any Jersey realty and French law governs the formal and essential validity of wills in respect of any French realty and so on.
Why make a will strictly relating to immovable property situated in Jersey?
A will dealing with immovable property in Jersey must be executed in accordance with the strict formalities required by Jersey law. If it is not, it will be invalid and ineffective. If a Jersey lawyer does not prepare the will, it may not comply with certain peculiarities of Jersey law.
How to make a will of immovable property
A lawyer will draft this.
Is an executor necessary?
No – an executor is not appointed in relation to Jersey real estate.
What happens upon death?
Generally, when immovable property situated in Jersey is left under a will, those named as beneficiaries (or at least one of them) must apply through a Jersey lawyer for the will to be registered in Jersey in the Jersey Public Registry (where all title to Jersey land is registered). The act of registration conveys title to the realty to the beneficiaries.
What happens if an individual dies intestate (ie, without making will)?
If an individual dies without making a will relating to his or her movable property (ie, personal estate) situate in Jersey, letters of administration must be obtained before the estate may be dealt with. Where there is no will, the procedure known as 'obtaining letters of administration' is equivalent to obtaining a grant of probate where a will exists. The person entitled to apply for letters of administration will be determined by the law of the jurisdiction of the deceased's domicile at the date of death. The identity of the relevant person may be difficult to ascertain (the identity of heirs may also be difficult to ascertain), which is an additional reason to consider making a will specifically relating to personal estate in Jersey.
If an individual dies without making a will relating to his or her Jersey immovable property (ie, real estate), his or her heirs will inherit the property (such heirs are determined by Jersey law).
Is a Jersey will necessary as a beneficiary of a trust situated in Jersey?
If an individual is not domiciled in Jersey, but is a beneficiary of a Jersey trust, a will to deal with his or her interest under the trust is generally not needed. However, Jersey legal advice should be sought in these situations.
Do shareholders of a Jersey company need a Jersey will?
Generally, those who are not domiciled in Jersey, but are shareholders in a Jersey company, require a Jersey grant of probate or letters of administration in order to deal with shares and transfer them as necessary. Therefore, it may be beneficial to make a will dealing with such shares, although in each case specific advice should be taken.
Does an individual that holds property jointly need a will?
If an individual co-owns property, it is necessary to check how the property is held. Jersey law recognises two forms of co-ownership (ie, joint ownership and ownership in common). The crucial difference between them is that on the death of an owner in common, his or her interest in the property passes under the will to his or her successors; whereas on the death of a joint owner, it automatically and instantly passes to the interest or interests of the surviving joint owners. The presumption in Jersey is in favour of ownership in common, so that express words are needed for joint ownership to be created. A joint owner (unlike an owner in common) cannot sell his or her interest in the owned property to a third party without the participation of his or her co-owners. However, any co-owner (joint or in common) may compel other co-owners to join in putting an end to the co-ownership.
For further information on this topic please contact Corinne Barnes at Ogier by telephone (+44 1534 504 000), fax (+44 1534 504 444) or email (firstname.lastname@example.org). The Ogier website can be accessed at www.ogier.com.