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Feb 12, 2014

Inheritance tax and law


The Global Property Guide looks at inheritance from two angles: taxation, and what inheritance laws apply to foreigners leaving property in Jamaica: what restrictions there are and whether making a will is advisable.

INHERITANCE TAX

How high are inheritance taxes in Jamaica?


Inheritance is not taxed in Jamaica but transfers of properties are subject to tax.
Properties can be transferred in two ways: inter vivos (in life) transfers and mortis causa (after death) transfers.

For transfers after death, the taxable inheritance is the market value of the estate less funeral expenses, estate administration expenses, and debts related to the property up to a maximum of 5% the property value.

TRANSFER TAX

NET TAXABLE VALUE, JMD (US$) MARGINAL TAX RATE
Up to 100,000 (US$1,085) 0%
Over 100,000 (US$1,085) 7.5% on all value over US$1,085

For inter vivos (in life) transfers or gifts, the tax rate is a flat 7.5%. When the transfer is between related people, the tax is imposed on the property’s market value.

The process of releasing inheritance is regulated by the Government of Jamaica. Until all the paperwork has been done and government duties paid, no property or other assets are released. The entire process takes about 18 months or longer.


INHERITANCE LAW

What inheritance laws apply in Jamaica?

Jamaican laws apply to the inheritance of real estate in Jamaica.

The principal laws applying to inheritance issues in Jamaica are:

  • The Probate of Deeds Act, which outlines the requirements for proving wills.
  • The Wills Act, which states the rules regarding making wills, determining the validity of wills, and the variation and revocation of wills.
  • The Inheritance (Provision for Family and Dependants) Act, which allows certain members of the deceased’s family to make an application to the Court for financial provision out of the property left by the deceased.
  • The Intestates Estates and Property Charges Act, which sets out how the property of an intestate is to be distributed.
  • The Administrator-General’s Act.
  • The Trustees, Attorneys and Executors (Accounts & General) Act.
  • The Trustees Act.
  • The Settled Land Act.
  • The Probates (Resealing) Act.
  • The Real Property Representative Act.
  • Civil Procedure Rules, 2002.
  • The Property (Rights of Spouses) Act.

Jamaican inheritance laws always apply to the inheritance of real estate in Jamaica; however if the deceased’s real estate is outside of Jamaica, then the laws of the country where the real estate is situated apply.

Jamaican inheritance laws always apply to the personal property of a deceased person who had permanent residence in Jamaica. If the deceased had a permanent home elsewhere, the law of the deceased’s permanent home applies to personal property.

If one spouse belongs to one nationality and the other spouse belongs to another, this does not affect how inheritance issues are resolved.

If the foreigner’s national law provides that in inheritance issues, the relevant law is the law of the country where the property is situated (e.g. in the case of a deceased foreigner who owns real property in Jamaica) then the Jamaican Court decides the matter by applying Jamaican law.

In Jamaica, inheritance issues are dealt with by either the Supreme Court or the Resident Magistrates Court. The Resident Magistrate’s Court handles inheritance matters where the value of the deceased’s estate does not exceed 1.5 million dollars and the Supreme Court handles other matters. The matters brought before either Court are decided by a single judge. These are the courts that would make decisions about non-resident foreigners’ property.

There is a reserved portion only for the surviving spouse.

The Property (Rights of Spouses) Act gives each spouse in a marital relationship (including a common law union) an entitlement to a half share in the family home; however the entitlements of a spouse may be varied by the Court. In order to qualify as a family home under the Act, the house must be:

  • wholly owned by one or both spouses ;
  • used as the only or principal family residence.

The rights arise in the following circumstances:

  • on the termination of marriage or cohabitation due to death
  • if there is a divorce, or if the marriage is declared null and void, or if the married couple separates and there is no likelihood of reconciliation;
  • on the termination of cohabitation of an unmarried couple;

Section 10 of the Act also permits spouses (married and unmarried) to enter into property agreements which address issues such as the current and future ownership and division of property.

Apart from this, no reserved portion of the estate must go to certain persons; however the Inheritance (Provision for Family and Dependants) Act allows certain members of the deceased’s family to apply for financial provision. This law applies to all property in Jamaica, even if the property is owned by a foreigner. The deceased’s family can apply to the Court for reasonable financial provision for maintenance on the basis of what is left to the applicant by the will of the testator, or by the rules governing intestacy.

It is normal to make a will in Jamaica.

The formalities for making a will in Jamaica are as follows:

  • The Will must be in writing.
  • The testator must sign at the foot or end of the Will in the presence of two witnesses who must be both present at the time he is affixing his signature to the Will and who themselves must also sign the Will below the signature of the testator.

The question of whether it is advisable for a foreigner to make a will in Jamaica depends upon the jurisdiction from which the foreigner comes. If the jurisdiction has the same formalities for making a will in Jamaica, then a local will need not be made in Jamaica.

 





Comments

#1 JRUSSELL | April 12, 2010

I'm asking the same if the a person dies and is the named title, and does not have a will, does the land go to the next of kin? or does it become the person that is now paying the land tax?

#2 MR BRYAN | April 18, 2010

Please could you provide response to the above question which I too am interested in knowing about.

Regards

#3 J.O, CASE | July 13, 2010

Read from Jamaican law includes rules of testate succession above. Intestacy refers to a person who dies without a will.

#4 MISS BENNETT | August 04, 2010

what if the will that was lift is invalid, what rights do i have as one of two surviving child. and what would be the procedures to follow.

#5 CARL ROSE | August 15, 2010

Hi, My grandmother passed away in Jamaica in December and we are told that she had an estate in Jamaica. How do I find out and see if I am due to Inherate from this. My grandad passed away some years ago and so did my father, her son.many thanks.

#6 BEVERLEY DUNCAN | August 18, 2010

my mum passed away in jamaica in 2007 she maide a will in 1987 at that time she was in sound mind but in 2005 my brother made a will for my mum saying that everthing belonged to him the 2005 will was made without my mumknowing so what is your advise

#7 MICHAEL TAYLOR | October 01, 2010

My wires mum passed away recently in Jamaica.her father died some years ago.she is the only child of them & lives in the uk.a nephew of her father who lives in the America is scheming to get the estate.how can my wife obtain a copy of the will & what is she advised to do?

#8 MARIE S. WRAY ATTORNEY-AT-LAW | February 18, 2011

Response to Michael Taylor's question- She must find out who is keeping the Will, and request a copy. If the request isn’t met, she could get herself an Attorney to request a copy of the Will on her behalf. It would also be wise to lodge a caveat against the property (to protect her interest) so that she will be immediately informed of any dealings with the property.

#9 MARIE S. WRAY ATTORNEY-AT-LAW | February 21, 2011

Response to JRUSSELL: Yes, the law says that the land will go to the next of kin (otherwise known as the beneficiary) and it also states what portion each person gets as well. With respect to your second question, paying land taxes does not automatically make you the land owner; you must be able to show how you came to own the land. Remember that anyone can pay the taxes for a property, once they have the details of the property.
Think about this: You live abroad but own property in Jamaica. You asked your brother to pay the taxes for you because you’ve been made redundant. Would it be fair to say that he can claim ownership to your property because he had been paying the taxes for a few years? I think not.



Response to MISS BENNETT: If the Will was found to be invalid, then the person has died intestate. According to law, as one of the surviving children, you would be entitled to a part of the Estate. In this case, you would have to apply to the Court for Letters of Administration so that the property can be shared up and distributed among all those who are entitled to a share. You would most definitely need the services of an Attorney to explain (in detail) the procedure, and your responsibilities.


Response to CARL ROSE: First, you need to find out if she left a Will, and if she did, whether you were named in that Will. The result of your investigation will determine where you go from here.




Response to BEVERLEY DUNCAN: If your information is correct, your mum’s 1987 Will is the one that stands. If your mum’s true wishes are to be carried out, the Will made by your brother, must be contested in Court (meaning that you must ask the Court to declare that the 2005 Will is invalid).You will need legal advice on how to proceed with this.



Response to CARLENE GRANT: (As explained above) When a person dies without a Will, he is said to have died intestate. If at the time of his death, the deceased person owned property, someone (usually a family member) must apply to the Court for permission to deal with the deceased’s Estate (what he owned when he died). The Court will then grant what is called Letters of Administration. This is a legal document which permits the person who made the application, to share up, and distribute the property according to how the law says it should be done. Until the Court grants this permission, no one can lawfully use, or deal with a Registered Title which is in the sole name of the deceased.
The issue of occupying someone else’s land and paying taxes for a number of years, and then applying for Title is another issue altogether, and cannot be fully dealt with on this forum. I must point out though, that paying the land taxes does not automatically make you the owner of a property.

#10 MELODY ANNE | November 24, 2011

Myself and my sister are located in Toronto Canada and have been here since childhood. Our father has always remained in Jamaica. He died in March of 2010 and my mother tells me that according to Jamaican law,even though he has other children, as the only two children that were born within the marriage with their mother we are the legitimate heirs. Is this true? My half brother suddenly cut off communication with me which has made me suspicious.

#11 ANDREA DAVIES | February 16, 2012

Talk about taxes in here, I read in an article that Married people’s taxes are treated just a little differently by the Internal Revenue Service, as the couple is considered a unit. However, they have the option of filing separately or jointly, and both choices have specific advantages and disadvantages. Resource for this article: Newlyweds of 2011 have to weigh filing individually or jointly

#12 CHRIS-CHRIS | March 16, 2012

My mother passed away earlier this year without any known will. She owned a house with her husband in Jamaica but a few years ago her name was taken off the title and she found out along the way so the house is solely in her husband's name. Does the law allow entitle any of her children to inherit any portion of this immoveable property as these children are not his. Basically I want to know what is the law regarding this immovable as far as children of the deceased are concerned.

#13 LOUISE | April 24, 2012

My father passed away in 2010. I am his only child. My father lived in the UK since the 1940's. His sister stayed in Jamaica and has one child (his niece who now lives in USA). She informed me that my fathers name is on the Tennent In Common paper her mother (my fathers sister) has in Jamaica. My fathers niece has informed me that I need to take my fathers name off and replace it with hers, as she says it is her mothers property. I know my father sent money over to my aunty my whole life and I also believe that the land was bought with the money that came from the sale of my grandparents home which I believe was left to my father and his sister. I don't feel comfortable about signing anything over to my dads niece, especially as she won't send me a copy of the papers she wants me to take my fathers name off. If it is a Tennent In Common paper, how long do I have to change my fathers name (he passed away two years ago). If it is the Land Title (which my fathers niece then tried to say it was), how long do I have to change my fathers name? Many thanks in advance.

#14 KAMELA PITTER | August 31, 2012

My aunt who lived in England died last year and left assets in that country and a house in Jamaica. She did not have any children and she was not married. Does the British government have the right to decide who get the house in Jamaica?

#15 DIANE | September 09, 2012

My Father who currently lives in the uk wants any inheritance that his parent's have left to him to go to his children.His parents passed away some years back but his sister who is the executor to the will won't give him any information.
She has said that the estate has been taken over by the administrator.My father has sinced written a letter to the lawyer that is dealing with the estate and has given him instructions to who he wants any inheritance that he gets to go to his children.He had witnesses present and they both signed the will/ letter.
Please can you let me know if this testomony will be able to stand in jamaica or is the law different?

#16 JENNIE MUNET ESTEBAN | November 11, 2012

My ex-husband was left property in his grandfathers will. He is not of sound mind & his father was his guardian. Now the father has recently passed away. My ex & I had two children, who he never supported, & were raised in the US. I am now afraid that my ex's half brother will claim guardianship & try to take control of the property, which should rightly go to my children & grandson. Can you please advise what to do to ensure that my children & grandson get their rightful inheritance? Thank you.

#17 JCME | December 11, 2012

Any chance my query will be addressed? I'm pretty sure my children will need a lawyer but it would be nice to have an answer. Thank you again.

#18 AMANDA BROWN | January 26, 2013

my god-mother and i went to a lawyer and had a power of attorney made for her and a will.the lawyer never registered the power of attorney document until 3 years after it was made. fortunate for me she never needed it.she is now dead and iwent and informed him and he cannot find a signed will for her. he can only find the draft of the will she made. i was the executor of the will.what do i do now? she was a spinster and neverhad any children, her mother and father are dead. . but she has a "half" sister that lives in the USA. but they were never close.she was 85 when she died

#19 ROHAN | March 17, 2013

I have an issue, my Grandmother passed away in 1980, leaving a house that we all lived in. There was a will BUT no one can find this Will, we would like to sell that house now, but was told we need to pay up some death tax since she died. How much is this death tax? I was told that it 1s a % of the value of the property after the 1st year she she died. The property was valued JM$3.5M as of Nov 2010. We are just wanting to see how much this tax would be so we can start paying it up so we can do what needs to be done t have it sold. Property tax is paid every year, any help would be grateful!

#20 MISSY | April 08, 2013

my father who lived in uk purchased land in jamica he put my brothers name on the title along with his sadly my father passed away he fell out with my brother and we think he forgot to take his name off the title,my father verbally instructed his sister(my aunt) to carry out his wishes but she was unaware that my brothers name was on the title my fathers family have been paying the land taxes for years are they entitled to the land or does it belong to my brother.We all reside in uk

#21 EARLE WRIGHT | May 05, 2013

My mother died in Jamaica in 1992.Hearsay is that she left a will but no one has seen it including the person who was stated to be the executor.One has to assume she died intestate
My oldest brother lived in the house till he died 1 month ago He also cultivated several acres of land that she owned- he left no will and had no wife or children.My other brother died 2 years ago so I am next of kin A nephew who lives in Jamaica states it will take "several years " to sort this out If I get a lawyer why should it take years to settle this

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