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RECORDING THE DEATH OF A REGISTERED OWNER

The application to be followed in recording the death of a registered owner depend on

the tenancy held by the deceased owner or if he or she was the sole registered owner.

Firstly, determine the tenancy. This can be done by reading the Certificate of Title. If
there are more than one persons as owners then it will be stated whether they hold the
land as joint tenants or tenants-in-common or whether they have an estate as a life
tenant.

1)Joint tenants

What is it - The essence of a joint tenancy is that each joint tenant is ‘wholly entitled to
the whole’ of the estate which is the subject of the co-ownership. In joint tenancy, no
joint tenant holds any specific or distinct share himself, but each is, together with the
other joint tenant or tenants, vested with the entire interest in the property in question.
They own as one single owner as against the world.

Four unities - There is the presence of the four unities - unity of title, possession,
interest and time.

The right of survivorship (or jus accrescendi) is described as the ‘grand and
distinguishing’ incident of joint tenancy. The right of survivorship, however, may be
destroyed by severance of the joint tenancy during the life time of the joint tenants. This
would mean a severance of one or the other of the essential unities.

When this occurs, the joint tenancy becomes a tenancy in common and each party is
entitled to a distinct share. With severance, each party may deal with his interest as a
separate and distinct share and the right of survivorship is totally and irrevocably
destroyed: Sheila Miller-Weston v Paul Miller SC per McDonald-Bishop, J (Ag.)

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So, to create a Joint Tenancy the following rules must be satisfied:

 All the joint tenants must acquire their interest in the property at the same
time and from the same transaction.
 The interest must be identical in nature and each tenant enjoys an equal
right to the whole or any part of the property but not an exclusive right to
possess any part.

Joint tenants have a right of survivorship. This means that if A and B own land as
joint tenants and if either A or B dies then the interest of the deceased joint tenant
automatically passes to the survivor. In effect the joint tenant does not have an
interest in the land that he or she can leave in a will unless he or she is the sole
surviving joint tenant. Once a joint tenant dies then the death is noted by an
Application to Note Death. Ask client for the following:

1. Death certificate
2. Duplicate Certificate of Title
3. TRN

Procedure to record the death of a joint tenant

1)How done - An application to Note the Death of a joint tenant done in the
form of a Statutory Declaration.

2)Who applies - The application should be made by all the surviving joint tenants or
remainder persons (the remainder person(s) are the person(s) to whom the land will
pass on the death of the life tenant).Last surviving joint tenant is deceased - If the
last surviving joint tenant/remainder person is also deceased then the application can be

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made by the personal representative of the deceased once a grant of Probate or Letters
of Administration has been received.

3)Contents of Application

The application should contain:

1.the name, address, and occupation of the applicant;

2. the capacity in which they are applying;

3. the description of the land as it appears on the Title;

4. the name and date of death of the deceased registered owner;

5. should expressly apply to have the death noted.

In some instances the name of the deceased on the Title varies from the name on the
Death Certificate. Where this occurs the applicant should account for this fact and
expressly state that both names refer to one and the same person.

4) Certified copy of the death certificate of the deceased owner which will not
be returned to the applicant. If no certified copy death certificate is available,
then the following is required:

 Original Burial Order;

 Declaration from the applicant fully detailing the reason for the unavailability of
the death certificate;
 Declarations from at least two other persons who knew the deceased for at least
ten years and can attest to the fact of death and burial;

5) Stamp Commissioner’s Certificate (Form 8) which verifies whether or not death

duties have been paid. The application to note death should first be submitted to the

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Stamp Office before being lodged at the Titles Office. The application will be cross-
stamped and signed by the Stamp Commissioner.

For joint tenants, on death of one, the Transfer Tax Act deems that a half share is being
transferred. There is a deemed division of interest on death and so property transfer tax
is payable on half the value (market value) of the deceased joint tenant’s interest.

6)Exemption from transfer tax on death

Statutory Declaration – If the property ought to be exempted from transfer tax on death
under paragraph 11(5) of Part II of the First Schedule (that is, in relation to a dwelling
house used as the sole/principal residence of the deceased and/or his spouse), a
statutory declaration may also be submitted claiming an exemption from transfer tax
under section 15 of the Transfer Tax Act.

NB that no revenue affidavit is required.

7). The duplicate Certificate of Title.

8) The appropriate registration fees.

It will then be noted on the Title that the owner has died and the date of his death.

2)Application on Transmission Tenants-in-common or Sole Proprietor

Tenants-in-common

1)What is it - a tenant in common does not possess a right of survivorship. The

tenant-in-common has an undivided share and interest in the property. A tenant-
in-common may deal with his share of the property as he or she sees fit. A tenant-
in-common may also hold unequal shares in property and therefore if no share is
stated then the presumption is equal shares, that is 50/50.

2)Application on Transmission on Death of - When a tenant in common dies then

his interest in the land passes under the terms of his will or if he dies leaving no

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will, his interest is distributed under the Intestate Estates and Property Charges Act.
(Probate)

Once a tenant-in-common dies, the passing of his estate to the personal

representative is registered by way of a Transmission Application.

3)Who makes- So, when a sole proprietor or a Tenant-in-common dies then his or her
personal representative can apply by way of a Transmission Application to have the
administrator or executor registered on Transmission. Normally when a person dies, his
or her estate is administered by one or more personal representatives.

These are person(s) to whom Probate (if the deceased died leaving a valid will) or Letters
of Administration (if the deceased died leaving no will) have been granted by the
Supreme Court or the Resident Magistrate Court.

A Transmission Application is a legal document used to register the person or persons

administering the estate of the deceased owner, this actually places that person in the
shoes of the deceased owner.

LAND PASSED BY TRANSMISSION

Transmission of an interest in land may arise where the interest is acquired by will,
settlement or by descent or intestacy. It involves dealing with the interest of a deceased
proprietor.

When a person dies property is vested in the executor or the administrator. Executorship
arises because they have been appointed by deceased in his will. The fact that someone
is appointed to be an executor does not put him in a position to deal in land, he must vest
the interest in himself. To do so he will need a certified copy of the grant of probate. Having
obtained a grant of probate the executor must then vest himself with the interest in the
property so that his name appears on the duplicate Certificate of Title. According to
S.130(1) when registered land is acquired by transmission the person claiming to have

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acquired the same shall apply in writing to the Registrar to be registered as the proprietor
and shall furnish such evidence of his claim as the Registrar shall deem to be necessary.

Upon such claim being proved to his satisfaction, the Registrar shall enter a memorandum
of the change of proprietorship accordingly upon the certificate of title for the said land, and
also (unless he has dispensed with the production thereof) upon the duplicate of the said
certificate. Upon such entry being made the person so entitled by transmission shall
become the transferee of such land, lease, mortgage or charge, and be deemed to be the
proprietor thereof, and shall hold the same for the purposes for which it may be applicable
by law and subject to any qualification under which the previous proprietor held the same,
but for the purpose of any dealings therewith under the provisions of this Act he shall be
deemed to be the absolute proprietor thereof.

The executor must ascertain the estate to see if there are any debts; he must assess the
status of the estate to see if the debts require him to deal with the estate. If a proper
assessment is not made and the executors transfer property to the beneficiary and there
is not enough money to pay for the debts of the estate, the executor will be personally
liable.

If the deceased entered into a contract to sell property and he dies then the executor
must step in the shoes of the deceased and deal with the interest in land and would
therefore have to be registered on title.

IF THE EXECUTOR IS A BENEFICIARY

Where the executor is a beneficiary he must assess the estate and do one of two things:

1. If the estate is solvent he can make an application to the registrar of titles as

personal representative and his request to the registrar to have property to be
vested in him as beneficiary thereafter;

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 2. If the estate is insolvent then the executor can ask the registrar to be registered on
transmission to pay the debts of the estate as personal representative.

THE EXECUTOR’S YEAR

After the executor’s year has passed the beneficiary is entitled to apply to the registrar to
be registered as the proprietor of property given to him under the will. The beneficiary
must show however:

a) Executor’s year has passed;

b) Executor has failed or refused to act;

c) He has gotten consent of the personal representatives to make the application; it

must be clear that he is making the application as beneficiary under the will.

WHAT INFORMATION MUST BE PRESENTED TO THE REGISTRAR

A Voluntary Declaration is usually prepared with a Application to be Registered on

Transmission but may also involve the situation where there is joint ownership and one of
the proprietors dies then there is transmission to the surviving owner. Right of
survivorship comes in when the joint owner dies. The surviving joint tenant will make an
application to be registered on title now as sole proprietor by preparing an Application to
Note the death of a Joint Proprietor. In this application the personal representative will
not be making the application for property to be vested as with joint ownership of
property it cannot be passed under a will. The surviving joint tenant will be asking that
the death of the deceased joint tenant be noted. He will simply show the death certificate
and there is no need for a grant of probate to be acquired.

Where there is a tenancy in common the property will pass to the deceased estate and
the personal representative will make the application to be registered on transmission. If
the surviving tenant in common is the beneficiary and the personal representative then
the property will first be vested in him as personal representative and then as beneficiary.

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All PRs must act or reserve power -If probate or letters of administration has been
granted to more than one or more personal representative then all of them must sign the
application.

4)Ask client for the following:

1. Will and Grant of Probate

2. or if the deceased died leaving no will a Grant of Letters of Administration.
3. Death certificate
4. Duplicate certificate(s) of title-
5. TRN
6. Valuation of property

5)To record the death of a tenant-in-common or sole proprietor the following

is required

1. The Transmission application- contents

This should contain:

1. Describe the property by giving the volume and folio number as appears in the
Register Book of Titles
2. Give full name, address and occupation of the PR
3. PR must explain his capacity to make the application eg that he is executor of the
estate of the deceased being appointed under the deceased will dated …
4. the court out of which probate has been granted and the date of grant;
5. PR should state the name and death of the deceased owner
6. PR should then give a detailed description of the land in accordance with the
description stated on the Certificate of Title eg that its all that parcel of land

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 situate in the place and parish being all the land comprised in the Certificate of
Title registered at Vol. Folio.
7. State the value of the land and insert land valuation number
8. any outstanding interest in the property
9. The executor/administrator should expressly apply to be registered on
Transmission.
10. Where the name of the deceased on the probate or letters of administration varies
from that on the Certificate of Title, it should be expressly stated that both names
refer to one and the same person.

2. Probate of the Will or Letters of Administration which is granted by the Supreme

Court or the Resident Magistrate Court: Grant of Probate or Letters of Administration
issued in other Commonwealth jurisdictions must be resealed in the Supreme Court of
Jamaica. The grant will be returned upon completion of the application provided that a
copy of the grant is sent with the application.

The registrar wants to see a court approved authority that such person is authorized to
administer the estate of the deceased person.

3. Stamp Commissioner’s Certificate (Form 8) issued by the Stamp Office

which verifies whether or not death duties have been paid. The Transmission
Application should first be submitted to the Stamp Office before it is lodged at the Titles
Office. The application will be cross-stamped and signed by the Stamp Commissioner.
Once get Certificate send with other documents to the Register of Titles Office.

Transfer Tax

The Transfer Tax Act stipulates that transfer tax on death must be paid. Section 5 says
that on the death of any individual, all property of which he was, at his death,

competent to dispose shall, is deemed to be, for a consideration equal to its market

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value at the date of his death, transferred by him at the date of his death to the
persons to whom such property passes on his death.

A sole proprietor pays transfer tax on the full market value of the property. While
a tenant in common pays actual transfer tax, because there has to be a transfer not
a deemed one.

Stamp Duty

The Stamp Duty Act requires all documents to be stamped. Registrar at Titles Office
will not accept documents not stamped. Also, cannot be produced in evidence in
civil matters. N.B A Valuation of the property is need to pay stamp duty. Transfer
tax on death is different from property transfer tax.

4)Statutory declaration pursuant to transfer tax Act – claiming any exemption in

from transfer tax on death in case of property being used as the sole/principal
dwelling of the deceased whilst he was alive.

Contents:

1. State it’s the sole or principal residence or matrimonial home that deceased
resided while he was alive.
2. State the value of the estate
3. Ask for an exemption from transfer tax on death on the basis that it was the
principal place of residence pursuant to paragraph 11(5) of Part II of the First
Schedule to the Transfer Tax Act.

5)Revenue Affidavit

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In case of property falling under the deceased estate such affidavit must be
prepared by the PR. That affidavit must set out the deceased’s real estate and
chattel and the values thereof. See paragraph 17(1) of Part II of the First Schedule
to the Transfer Tax Act. Thus, in case of a sole proprietor and a tenant in common
the PR must prepare a revenue affidavit.

Documents to be submitted to Stamp Office to get Stamp commissioner

Certificate:

1. receipt showing payment of transfer tax on death

2. receipt showing property taxes up to date
3. Transmission Application Form
4. Death Certificate
5. Duplicate Certificate
6. Grant of Probate or Letters of Administration
7. Revenue Affidavit Form
8. Valuation report

7. The duplicate Certificate of Title - this confirms the interest of the deceased.
Examine to see how such interest was held eg whether as joint tenants or tenants
in common.

8. Death certificate – a certified copy to confirm the death of the deceased. If

none see above or Affidavit in Proof of Death –done by someone who was at the
deceased funeral and witnessed the body interred e.g. someone form funeral
home or minister of religion.

9. Affidavit as to Alias
Discrepancy in names on Duplicate, Death Certificate and Probate

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 Do an Affidavit of Alias stating that persons on respective documents are one and
the same. Somebody who knew him could do it eg. Spouse. Exhibit birth
certificate, marriage certificate
, passport records, deed poll where necessary. State knew person for a period of
time and he changed his name or that his name was such and such but called
Such.

10. The appropriate registration fees.

After get back documents from stamp office send them to Titles Office:

-certified Copy of Grant of Probate/LA

-transmission application

-Duplicate certificate of title

-Form 8

-transfer – if transferring to Bs

-Fees

-Personal Representative entered on title

The personal representative will be entered on the title in their capacity as executor(s) or
administrator(s).The personal representative may:

1. make an assent to the beneficiaries of the land; or

2. if they decide to sell, may transfer the land to the purchaser at the same time that
he or she is applying to be registered on transmission or after the personal
representative is registered.

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