Wills and Estate Planning
We can help you make clear, easy to follow and appropriate arrangements for your estate whether your assets are in Jersey or overseas. We can advise you on Jersey inheritance law.
We can also act as Executors either in person or through an Executor company. We can also assist people who have been named as Executors in the work involved in administering an estate.
Types of Estate
Under Jersey law there are two types of estate: immovable estate, known as "real estate" and movable estate, known as "personal estate".
Immovable estate includes your house, land and leases that last for a period in excess of nine years. Movable estate, very loosely is everything else, including cash, personal effects, share transfer properties, bonds, shares and cars.
Special Position of the Surviving Spouse and Children
There is special protection in Jersey law for people's wives and husbands and also children.
When there is a Will
When the matrimonial home or any other property is jointly owned, it passes automatically, by operation of law, to the surviving joint owner, whether they are a spouse of the deceased or not.
When the matrimonial home is not jointly owned by a husband and wife and the wife is not left the matrimonial home in her deceased husband's will, she can claim her dower. Dower is the right to enjoy one third of her husband's immovable estate during her lifetime. After that, the property passes to the person named in the husband's Will. Practically this means that the wife has two options: She can sell her life enjoyment (the dower) or live in one third of the property, hence phrases such as "dower wing" and "dower cottages".
When the matrimonial home is not jointly owned by a husband and wife and the husband is not left the matrimonial home in his wife's Will, he can claim his viduité. Viduité is a life enjoyment of all of the wife's immovable estate but it only applies if there was a child (or children) born of the marriage. Viduité is lost if the man remarries.
Dower has to be claimed by the widow but viduité is an automatic right which does not need to be claimed.
Children have no equivalent claims to the immovable estate of their parents.
When you have made a Will it is subject to any spouse or children's claim to légitime.
Légitime is the right of a spouse and children to claim between them two thirds of your movable estate as légitime.
If there is a spouse but no children, the surviving spouse shall be entitled to the household effects and two-thirds of the rest of the net movable estate.
If there is a spouse and issue (children), the surviving spouse is entitled to the household effects and one-third of the rest of the net movable estate and the children may claim one-third of the rest of the net movable estate.
When there are children but no spouse, the children may claim two-thirds of the net movable estate between them.
In all the above scenarios, one third of the movable estate is not subject to légitime. This is often referred to as "the disposable third". You can leave your disposable third to whoever you like.
People who are unmarried and without children can leave their movable estate to whoever they like even if they live with a partner.
When are spouses excluded?
As a general rule, the surviving spouse provisions do not apply to:
- spouses who were living apart as at the date of death;
- unmarried couples;
- "common law marriages"; or
- divorced couples or those who are judicially separated.
In such cases the partner receives nothing from the estate unless the asset (be it movable or immovable) was jointly owned with the deceased. It is for this reason that many people make Wills.
When are children excluded?
Illegitimate children have no claim to their biological father's estate. They do have a claim to their mother's estate. Legitimated and adopted children take under their parent's estate in the usual way.
Why Make a Will?
The Jersey law of inheritance is not straightforward. If you do not make a Will, relatives you do not know or do not like could inherit from you. By making a Will you do what you can to ensure that your estate passes in the way you would like after your death as much as possible.
People are often mistaken in thinking that it is not worthwhile making a Will because they do not have anything to leave to people. However, it could be that they have forgotten about life insurance policies, death in service benefits or possible future inheritance prospects which would make a Will worthwhile.
There are other potential benefits to making a Will including:
- your assets pass according to your specific wishes (subject to any légitime claims);
- you choose who puts your Will of movable estate into effect (the Executor);
- you minimise possible disagreement between family members and others about how your estate should be distributed after your death;
- you can save costs;
- it avoids an intestacy (which could mean that your assets pass to someone that you do not know or do not like);
- you can provide for an unmarried partner or you and your spouse dying simultaneously.
- you can express wishes regarding your funeral, for example whether you would prefer a burial or cremation; hymns or not; and where any service should take place;
- you can indicate what you would like to happen to your body, for example whether you wish to donate your organs for transplant or medical research.
When there is an intestacy
Under Jersey law, if a man or woman dies who owned the matrimonial home in their sole name (rather than jointly), their surviving spouse has a right to live in that home for the whole of their lifetime. The surviving spouse is under a duty to maintain the home as usufruitier, for example, they must keep the house and any gardens in a good state of repair and properly insured. Again, the children have no right they can claim in the matrimonial home.
If there is other immovable property, such as a second home in France, then under an intestacy if there were no children of the marriage, the surviving spouse will take all such immovable property. If there were children born of the marriage, the surviving spouse is entitled to one half of such immovable property and the surviving children share the other half between them.
If someone dies without having made a Will leaving movable estate, then their surviving spouse and children, if any, have a claim to the movable estate.
The surviving spouse is entitled to the "household effects". Household effects are "articles of household or personal use or ornament normally situate in or around the matrimonial home". They do not include any motor vehicle; article used wholly or principally for business purposes; money or securities for money; any single article or any single group of similar or related articles forming a set having in either case a value over £10,000; or any article of personal use or ornament which is the subject of a specific bequest under the Will of the deceased spouse.
The surviving spouse is also entitled to the first £30,000 of the remainder of the movable estate. That means that if the rest of the movable estate is valued at £30,000 or less, the surviving spouse will take it all to the exclusion of any children.
If the remainder of the movable estate is worth more than £30,000, the surviving spouse is entitled to a further one half of any amount valued at over £30,000 and the surviving children (or grandchildren of the children have predeceased?) of the marriage share between them one half of the movable estate, over and above the value of £30,000.