Making Wills in Jersey

Why is it necessary to have two wills in Jersey?

You may be surprised to know that you should make not one but two Jersey wills. The reason for this is that Jersey, unlike England, has different legal formalities for dealing with immovable estate and movable estate.

The will of immovable property in Jersey (covering land and everything built on it, leases for over 9 years, flying freehold property and the benefit of certain mortgages) is registered after death in the Public Land Registry. All interests in immovable property in Jersey are registered and open to public inspection.

The will of movable property (covering all assets apart from Jersey immovable property such as jewellery, furniture, bank accounts shares and investments) is a more private document but it becomes a public document when it is admitted to probate. The executor is responsible for administering the estate, i.e. collecting assets, paying debts and expenses and distributing legacies and bequests to the beneficiaries. This will may provide for land outside Jersey. If it does so, it is important to also obtain legal advice in the country where that land is situated.


Effectiveness

The will only takes effect on death. The will of immovable property is recognised on registration and the will of movable estate is recognised when probate is granted. In both cases there may be a claim for cancellation which can be made within a year and a day. There are certain grounds for challenging a will.


What happens if I die without a will?

If you are domiciled in Jersey and you die without a will (intestate) leaving a surviving husband or wife and descendants (children, grandchildren etc.) the surviving husband or wife is entitled to the household effects, the first £30,000 of movable estate and half of the remainder. The descendants take the other half. If the matrimonial home is a share transfer property the surviving spouse receives a life interest in it.

Jersey immovable estate passes on intestacy to give the surviving spouse life enjoyment of the matrimonial home and an equal share with each of the children of the ownership of the property. Gone are the days when the eldest son took the property for himself as principal heir.

If you are domiciled outside Jersey the laws of your domicile will apply to movable property. If you own immovable property outside Jersey the laws of the country where that property is situated will apply.


Am I free to leave my property to anyone?

Jersey has adapted the customary law concept of "légitime" which applies to movable estate, but not immovable estate. If you are domiciled in Jersey, the surviving spouse and issue can claim against an estate if they have not been given their "one third share" (where there is spouse and issue) or their "two thirds share" (where there is either spouse or issue). The remaining third is freely disposable by will.

Légitime is not an automatic entitlement; it has to be claimed. There are many family situations where the children are perfectly content to let the surviving spouse inherit all the movable estate which has been given to them absolutely in the will. This is often not the case if there has been a divorce and second marriage. Claims have to be made within a year and a day of the issue of the Grant of Probate.


Husbands and Wives

If a man dies leaving everything in his will to his wife and one of the children claims légitime the whole estate is reduced "ad legitimum modem". A £30,000 estate would then be distributed as to £20,000 to the widow and £10,000 to the children. Ironically, if he had not made a will his widow would then have inherited the full £30,000 on intestacy.


What is the £90,000 trap?

On an intestate estate valued at £60,000, the widow would take £45,000 and the issue would take £15,000. However, if there was a will leaving everything to the wife and his will is reduced by a légitime claim £40,000 will go to her and £20,000 to the issue.

In fact, the surviving husband or wife would be better off under intestacy for estates up to a value of £90,000 (and not much worse off for values slightly in excess of this) assuming that one of the issue wishes to claim légitime. This is referred to as the "£90,000 trap".

The surviving husband or wife keeps all the household effects on intestacy. This does not include either motor cars, items or sets of items with a value of over £10,000, items used for business purposes, money or securities for money.


Domicile

Your domicile is generally the legal jurisdiction in which you live and where you intend to live for the rest of your life. It is not always the same as residential status for tax purposes. Domicile is important as it connects you to a legal system. Most people living in Jersey will be domiciled here. Some people temporarily living in Jersey will be domiciled in another country. Some people living outside Jersey will be domiciled here if they have lived here and intend to return even if they have lived away for a long time. Domicile can be affected by what your domicile was at birth, during childhood and then during adulthood. There are some English statutory tax exceptions too.


Should I consult a lawyer?

As it is essential that wills are in correct form and properly witnessed, you should always consult a lawyer to advise on and prepare your wills. There are no pre-printed will forms suitable for use in Jersey.


What do I do before going to see a lawyer?

  • Consider where you are domiciled.

  • Consider who you would like to administer your estate.

  • Consider directions for funeral arrangements.

  • List all property and assets and assess a rough value for them.

  • List any mortgages or charges.

  • List your family, their addresses and their dates of birth.

  • List any friends or other relatives you may want to benefit.

  • Consider what happens if any of those you wish to inherit die before you.

  • Consider particular bequests of furniture, jewellery, a collection, or personal effects and legacies of money.


    Can I change my wills?

    Wills only become effective at the time of death. You are free to change the provisions of your wills, as your circumstances alter, throughout your life. However, any such changes must be made in accordance with the law and it is therefore important that you consult your lawyer if you feel that your wills might need to be amended.


    Do I need an executor?

    An executor is required for movable estate, but not for immovable estate. The executor is the person who will administer your estate and distribute your property in accordance with the provisions of your will. You may appoint anyone as your executor but you should always ensure that the person you have in mind is happy to act as such.

    If you die intestate, an administrator will be appointed. This is usually a close relative.


    What happens if I divorce after making my wills?

    Gifts to your spouse by will, or the appointment of your spouse as your executor, are automatically cancelled on divorce, but the rest of your will remains valid. We recommend that you review your wills if you have divorced or are about to do so.


    What if my partner and I are unmarried?

    Your partner will not have any rights to your property if you die without making a will. However, you may provide for your partner in a will (subject to the rules set out above regarding wills of immovable and movable estate). If you are a woman, both legitimate or illegitimate children have "légitime" entitlements as set out above. However, if you are a man only legitimate children have "légitime" rights.


    What about joint assets?

    Both movable and immovable property can be held jointly with one or more others. It is important to know whether the interest is as a joint owner or as an owner in common. A joint ownership means on the death of one owner the property automatically passes to the survivor(s) by operation of the contract when the property was purchased. This means the property is not affected by any will or by intestacy. However, ownership in common means that on the death of one owner his part of the property will pass in accordance with the will or on intestacy. Bank accounts, investments and household effects can also be owned jointly or in common.


    And what happens when someone dies?

    Your lawyer can advise on the effectiveness of the will and whether any special arrangements need to be made for the funeral. It may be necessary to take steps to safeguard the assets. Some matters may call for immediate attention such as housekeeping expenses, the wages of employees and obtaining adequate insurance cover. On the other hand, financial assets can often be dealt with at a later date. Distributions to beneficiaries will often not be made until after a year and a day has elapsed from the date of the grant of probate to await the period in which a challenge to the will can be made.