The Probate and Administration of Estates Act (the "Act") was assented to on 8 February, 2011 and came into effect on 1 June, 2011. The purpose of the new legislation is to consolidate into one statute the laws relating to obtaining grants of representation and the administration of estates in The Bahamas.

The old law with respect to probate matters was derived from various sources namely:

  • Part V of the Supreme Court Act (Ch. 53 of the Statute Law of the Bahamas, 2009 Revised Edition) where the substantive provisions on probate causes and matters were found;
  • Part II of the Supreme Court Act which contained the Probate Rules governing non-contentious probate business;
  • Order 68 of the Supreme Court Rules which contained the provisions governing contentious probate proceedings;
  • the Administration of Estates Act (Ch. 108 of the Statute Law of The Bahamas, 2009 Revised Edition); and
  • Where the laws of The Bahamas were silent, reference was made to the English probate law practice and procedure which had been extended to The Bahamas prior to our Supreme Court Act being enacted.

This Act repealed Part V of the Supreme Court Act, section 341 of the Penal Code (which relates to stealing a will or codicil) and the Administration of Estates Act in its entirety.

The Act introduces the establishment of a depository for Wills which comes under the control and direction of the Chief Justice. The concept is that, for a fee, a person may deposit his Will with the Registrar of the Supreme Court for safe keeping. As Wills are deposited, the Registrar shall cause a record of such deposits to be maintained.

Each deposited Will must be in a sealed envelope which must have clearly stated thereon (i) the name and address of the testator as it appears in the Will, (ii) the name and address of the executor, or executors if more than one, as it appears in the Will, (iii) the date of the Will and (iv) the name of the person who deposits the Will.

A Will may only be withdrawn or available for inspection by the testator during his life. After the lifetime of the testator and upon providing proof of the death of the testator, the executor (or his attorney) or any beneficiary named in the Will (or his attorney) may inspect the Will. It should be noted that the placing of a Will in the depository does not create the presumption that such Will is the last Will created by the testator.

The Act also seeks to clarify the Court's jurisdiction with respect to who would be eligible to obtain a grant of representation in the estate of a deceased person in The Bahamas. The deceased person should have either been ordinarily resident in The Bahamas or his estate should consist of property in The Bahamas. For interpretation purposes "property includes a thing in action and any interest in real or personal property", e. g., a right to sue, real estate or monies standing to the credit in a bank account in the name of the testator (respectively).

Another concept introduced by the Act is that of sub-registries of the Probate Division of the Supreme Court. Before the Act came into force all probate applications were submitted to the Probate Registry in New Providence. New provisions now allow for applications to be submitted directly to self-sufficient sub-registries located on any one of the Family Islands, which should alleviate the burden on New Providence. Presently, the only sub-registry which is able to facilitate applications is on Grand Bahama.

The following types of grants of representation may now be applied for under the Act:-

  • grant of probate;
  • grant of administration;
  • grant of administration pendente lite;
  • grant de bonis non;
  • grant ad litem;
  • grant of special representation where personal representative is abroad;
  • grant during minority of executor;
  • grant where a minor is a co-executor;
  • grant in case of mental incapacity;
  • administration with the will annexed;
  • grant to attorneys;
  • grant where a deceased person died outside The Bahamas;
  • grant in an additional name; and
  • grant to consular officers.

While in certain applications it is still necessary to give a bond to the court, under the new Act, only one surety is required unless the court decides otherwise. Such bond shall be double the amount at which the personal estate and effects of a deceased person are sworn as opposed to the current amount of four hundred ($400) dollars.

Additionally, there is now an obligation on the personal representative, once the grant has been issued, to file a return of the value of the personal estate and effects of the deceased within 6 months after the date of the grant where the estate is in New Providence and within 9 months after the date of the grant where the estate or any part thereof is on a Family Island. Failure to file the return within the specified time is a summary offence with a penalty not exceeding three thousand ($3,000) dollars.

The Act also seeks to address the issue of grants of representation for estates in civil law jurisdictions. It enables the "paper" issued in the civil law jurisdiction to be presented for the purposes of making an application for a grant of representation in The Bahamas. "Paper" is defined in the Act as "...any document issued in respect of a testamentary or non-testamentary application".

Notably, section 40 of the Act allows bank managers to pay up to twenty-five hundred ($2,500) dollars from funds which are held to the credit of a deceased person to any person who, upon producing satisfactory evidence, appears to the manager to be entitled by law to the funds without the need to produce a grant of representation. It is necessary for the person claiming the funds first of all to deliver to the bank a declaration to the effect that the funds are to be used for funeral expenses. This codifies the practice currently employed by most local retail banks.

The Act further provides for employers to pay sums being held to the credit of deceased employees (not being public officers) to a beneficiary designated in writing under oath by the deceased employee without the need for such beneficiary to produce a grant of representation. Any sums so held by an employer will not form part of the deceased employee's estate and will not be subject to his debts.

The Act also introduces a new provision to deal with small estates, i.e., estates which are valued at less than ten thousand ($10,000) dollars. It is anticipated that the process will be faster than a regular application. With small estates, an applicant need only file a petition and produce evidence of the death of the deceased. The applicant is then interviewed by the Registrar who would advise what other documents (if any) would be required to complete the application. The Registrar would have the discretion to reduce the usual requirements.

The remainder of the Act deals with the administration of estates in The Bahamas and includes no significant departure from the previous law.

Any applications for grants of representation which were submitted to the Probate Registry filed prior to the coming into force of the Act are not affected by the provisions of the Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.