When a person dies, somebody must deal with the deceased’s estate by disposing of their assets and paying any debts and death taxes. This person—known as an estate representative—becomes responsible for the deceased’s estate.
Important terms
- Estate representative – the person responsible for administering the estate of someone who has passed away
- Executor(s) – a specifically named individual (or individuals) appointed in the will to manage the estate
- Administrator – an individual appointed by the courts when no will exists or when a will doesn’t appoint an executor
- Probate – the process of proving a will and codicil of a deceased and registering same with the Supreme Court Registry.
- Caveat – a document lodging an objection to the issuance of a grant for an estate
- Stamp duty – tax paid on the net value of the deceased’s assets
Determining the estate representative
The estate representative in Bermuda is the executor named in the deceased’s will. If no will exists or if the existing will does not name an executor, the law establishes who is entitled to apply for a Grant to administer the deceased’s estate in the following order of priority (please refer to the Non-Contentious Probate Rules, 1974, Rule 20 for the complete list of those who have order of priority):
- The surviving spouse
- The children of the deceased, or the issue of any such child who has died during the lifetime of the deceased
- The father or mother of the deceased
- Brothers and sisters of the whole blood, or the issue of any deceased brother or sister of the whole blood who has died
What an estate representative does
The estate representative is responsible for the following tasks relating to an estate:
- Gathering in the assets and arranging for their safe-keeping or investment before distribution
- Identifying and pay the debts, court fees, and deceased estate taxes due to the Government
- Distributing the assets to the beneficiaries named in the will (or, where there is no will, in accordance with the law)
Being an estate manager requires careful management. If you are in any doubt about the process or your ability to carry out these duties, you should engage the services of an experienced attorney or other professional. The process of settling an estate can take a long time, especially where there are beneficiaries who are still minors and the assets must be prudently managed before eventual distribution.
Applying for a Grant in Bermuda
The basics
After someone passes away, the estate representative must make an application to the Supreme Court for a Grant of Probate (if there is a will) or a Grant of Letters of Administration (where there is no will). Required documents are the Application, the Oath and the Affidavit of Value.
Completion of the documents is the end result of the administrator’s due diligence and information gathering to determine and confirm the assets and liabilities of the estate as at the deceased’s date of death (e.g., this would include confirmations from Bermuda’s financial institutions as to account balances, confirmations from law firms as to whether or not they held, hold, or prepared a will for the deceased, and completion of searches to confirm the deceased’s interest in real property).
Please note that the forms are basic templates. The contents of the final documents are specific to the deceased’s estate and should contain additional information and meet requirements pursuant to legislation and Supreme Court Registry practice directions for deceased estates.
Who can apply for an oath
It is strongly recommended that the estate representative seek the advice of an attorney (also known as an officer of the court), as preparation of the forms and presentation of supporting documentation is an exercise that goes beyond filling in the blanks. Compliance with legislation and practice directions is required. Each application will be different as it relates to the contents of the Oath and the Affidavit of Value, particularly for the calculation of the net estate and stamp duty payable on same. Relevant legislation and practice directions in relation to the probate process follows.
Please note that any application not prepared by an officer of the court would require additional proofs confirming compliance and addition wording confirming same.
What does a probate application consist of?
In Bermuda, a probate application consists of:
At a minimum, application documents will include:
- Oath and Affidavit of Value
- The deceased’s death certificate
- Original copy of the will/codicil (if any)
- For applications for Grant of Letters of Administration, published Official Gazette notices
Example notice form of advertisement for the Official Gazette
- For estates where the deceased is male, published Notice of Kin Official Gazette Notice
Example notice of kin advertisement for the Official Gazette
- Any other supporting documentation relevant to the application, such as Primary Family Homestead Certificate, property schedules, birth, death and marriage certificates, etc.
- Oath:
- Where there is a will:
Oath for a Grant of Probate
- Where there is no will:
Oath for a Grant of Letters of Administration
- When there is a will but someone other than the named executor is making the application:
Oath for a Grant of Letters of Administration with Will Annexed
- Where there is a will:
- Affidavit of Value:
The Grant of Probate, Grant of Letters of Administration or the Certificate in Lieu of Grant, sealed by the Registrar of the Supreme Court is proof that the grant holder is entitled to administer the deceased’s estate.
Estates valued at less than $50,000 – Certificate in Lieu of Grant
If the deceased’s Bermuda estate consists only of personal property with a gross value no greater than $50,000 and the deceased holds no interest and no ownership in real property (real estate), pursuant to Sections 20 and 21 of the Administration of Estates Act, 1974, a small estates application may be made leading to the sealing of a Certificate in Lieu of Grant.
This process starts with the applicant’s completion and filing of the Small Estate Information Form. The form is self-explanatory in terms of what must be provided and who is entitled to make the application.
The Supreme Court Registry’s estates section undertakes the due diligence and information-gathering process, at the end of which they will prepare the Application, Oath and Affidavit of Value for the applicant’s execution.
Apply for a Certificate in Lieu of Grant.
Filing fees
Filing fees in the form of revenue stamps must be affixed to documents as follows:
- Application
- Gross Estate does not exceed $25,000 - $25
- Gross Estate exceeds $25,000 but is not greater than $50,000- $50
- Gross Estate exceeds $25,000 but is not greater than $50,000- $50
- Gross Estate exceeds $50,000 but is not greater than $200,000- $100
- Gross Estate exceeds $200,000 - $250
- Oath: $15
- Affidavit of Value: $15
- Certificate in Lieu of Grant $25 + $5 (Section 20 (1) and 21 (1) the Administration of Estates Act 1974)
- Caveat: $25
Stamp duty payable on the deceased’s net estate
A tax known as “stamp duty” must be paid on the value of a deceased’s net estate that exceeds the legislated exemption amount that was in place as at the date of death. The net estate calculation is an element of the Affidavit of Value, being the deceased’s gross Bermuda assets at the date of death less applicable deductions and exemptions pursuant to Part IX of the Stamp Duties Act, 1976 (e.g., the value of the designated primary family homestead, as evidenced by the Primary Family Homestead Certificate issued by the Tax Commissioner’s Office, is an allowable exemption; the value of any legacy or benefit to a surviving spouse is an allowable deduction).
The schedule for calculation of stamp duty due on the deceased’s net estate is below, and is applicable for deaths occurring after 31st March 1992. Contact a member of the Probate Team.
Deaths occurring from 1 April, 1992 to 16 February, 1993
- First $20,000 – Exempt
- 5% on the next $80,000
- 10% on the balance thereafter
Deaths occurring from 17 February, 1993 to 14 February, 1995
- First $30,000 – Exempt
- 5% on the next $70,000
- 10% on the balance thereafter
Deaths occurring from 15 February, 1995 to 31 March, 2010
- First $50,000 – Exempt
- 5% on the next $150,000
- 10% on the next $800,000
- 15% on the balance thereafter
Deaths occurring on or after 1 April, 2010
- First $100,000 – Exempt
- 5% on the next $100,000
- 10% on the next $800,000
- 15% on the next $1,000,000
- 20% on the balance thereafter
Caveats
A caveat prevents the sealing of a Grant without notice to the caveator.
A caveat may be filed at the Supreme Court Registry at any time by completing and filing a Form 5 - Caveat Form. A caveat expires after 6 months but can be renewed by filing another caveat. In order for a Grant to be sealed, the caveat must be withdrawn in writing by the caveator.