Cayman Islands' Probate Practice for Non-Cayman Domiciliary

When a non-Cayman domiciliary dies owning Cayman Islands assets such as shares in a Cayman Islands company or interests in Cayman Islands funds (Cayman Estate), a grant of representation (Cayman Grant) issued by the Grand Court of Cayman (Grand Court) is usually required for transmitting such Cayman Estate. The registered office provider is not authorised to update the register of members or limited partnership interests without a Cayman Grant. Directors and general partners ought not to approve such transmission without reviewing a Cayman Grant.

This article outlines the procedure and documentation required to secure a Cayman Grant of the estate of a non-Cayman domiciliary.

A Cayman Grant usually takes one of the following forms:

  • Grant of probate;
  • Grant of letters of administration with will annexed or on intestacy;
  • Resealing of a non-Cayman grant of representation or its equivalent, if any.

Application Procedure

Application should be made within six months after the death of the non-Cayman domiciliary, unless "special leave" for the extension of the six month deadline, setting out the circumstances of why the application is being filed out of time, is applied for. The applicant must file the full grant application within 30 days after the special leave is granted. If the applicant for whatever reason fails to do so, a fresh application for special leave must be filed.

For a grant of probate application; the Grand Court requires the following documents:

  • the original will (and codicils if any) or court certified copies of them,
  • an original death certificate;
  • the application for the grant;
  • an affidavit in support of the application for probate with the Cayman Estate value declared therein;
  • a letter of authorisation authorising the attorney for the executor to file the application on his behalf.

The applicant undertakes in the application that after the grant is made, he shall file an inventory of the Cayman Estate within six months of the grant being made and administer the estate and file an affidavit of general accounting within one year of the grant being made.

Documents required for a grant of letters of administration are similar to the grant of probate, except the administrator must also sign a prescribed court document called a ''bond"; arrange a third party bond of surety; and it may be necessary to file an affidavit of a legal practitioner qualified in the jurisdiction where the deceased person is domiciled explaining, among other things, the entitlements of the heirs. The bond and bond of surety values are set at double the sworn estate value to guarantee the administrator administers the Cayman Estate appropriately.

A grant of probate would generally be granted to the executor named in the will written in English; or to an individual described by the will to have duties in terms sufficient to constitute him to be the executor according to the tenor of the will. For letters of administration, the Probate and Administration Rules (Revised) dictates who is entitled in priority to make such applications, and therefore entitled to the Cayman Grant. The Grand Court may order that the grant be made to the following if it finds it appropriate:

  • to the individual entrusted with the estate administration by the court having jurisdiction at the place where the deceased died domiciled (Entrusted Individual);
  • if there is no such Entrusted individual, to the individual (or such of them if more than one as the Grand Court directs) beneficially entitled to the estate by the law of the place where the deceased died domiciled; or
  • such other individual as the Grand Court determines.

The Grand Court generally takes approximately three to six months to issue a grant depending on the court schedule.

Where a deceased's Will has been admitted to probate in the deceased's jurisdiction of last domicile, it may be possible to be resealed by the Grand Court.

There is no inheritance tax , death tax or estate duty in the Cayman Islands and the filing fees are irrespective of the Cayman Estate value.

Conclusion

The above outlines the general procedure for obtaining the Cayman Grant. Nonetheless, the fact remains that in every case a Cayman Grant must be obtained to legally deal with the Cayman Estate. In view of the popularity of Cayman Islands companies and funds in Asia and that shareholders and investors are aging, it is therefore crucial to work with experienced Cayman Islands counsels in applying for a Cayman Grant in order to deal with the transmission of the Cayman Estate in a cost effective and time efficient manner.

– Anthony Partridge, Partner,
Ogier Cayman Islands;
– Wisdom Hon, Senior Associate,
Ogier Hong Kong

Jurisdictions: 

Partner, Ogier Cayman Islands

Senior Associate, Ogier Hong Kong