09 Oct Wills and Probate Practice in Nigeria
When a person dies, their estate (assets) devolves on their survivors in the following order; spouse, children, parents, siblings, or extended family. However, where such person executes a Will before his death, the assets will be distributed according to the wishes of the deceased.
This article seeks to guide readers on the steps to obtaining legal rights over the property of a deceased who died with or without executing a valid Will.
Where the deceased executed a valid Will
A Will is a legal document that directs the distribution of the assets of a person (called a testator) upon his death. The testator appoints executors who administer his estate (assets and property) and ensure that debts and creditors of the deceased are paid off and the left-over money or property distributed according to the last wishes of the deceased.
For a Will to be valid, there are certain pre-requisites, namely;
- The testator must have been of sound mind
- The Will must have been made voluntarily
- The Will must be in writing
- The Will must have been signed in the presence of at least two witnesses who must attest to same
- The Will must identify the assets and beneficiaries of the deceased’s estate.
In the absence of one or more of the above, any interested party may challenge the legality of the Will in court. It is also important to note that the testator must have been 18years old at the time the Will was made.
Wills may be kept in the solicitor’s custody, the deceased’s home, the bank or the probate registry. It is advised to keep it in the probate registry which is located in every high court premises. Usually, the testator appoints an executor in the Will whose duty is to manage and administer the estate of the deceased until it is validly given to the beneficiary. Executors also generally carry out the wishes of the testator as stated in the Will and hold property in trust for the beneficiaries when necessary (for example, where the beneficiary is a minor).
Where the Will is kept at the registry, the solicitor is to write to the Probate Department, informing them of the death of the deceased and attaching the death certificate as proof. This must be at least 7 days after the occurrence.
Upon confirmation of the existence of the Will, the probate registrar sets a date, time and location with the solicitor and concerned parties to unseal and read the contents of the Will to the parties in Court. The parties present must confirm that the Will was sealed before its contents were read out.
The Will describes and identifies the assets of the deceased, including liabilities (if included).
Grant of Probate
The estate of a deceased cannot be managed or benefited from without the grant of a probate by the Court.
A probate is a letter of authority granted to a person(s) (an executor/beneficiary) directed in a Will to manage the properties/estate of a deceased. Where the Will does not provide for an executor, the Court is at liberty to appoint anyone (often times a beneficiary) to act as an executor.
Obtaining a probate involves a written application accompanied by other supporting documents including a sworn declaration on oath by the executor and a bond completed by the executor(s) to cover the assets and liabilities of the deceased.
The probate grants the executor the authority to manage, sell, share, lease, use, sue and be sued in respect of the deceased’s property where necessary. Where the executors are separate from the beneficiaries, they also have the right to devolve, share, vest, transmit or transfer the properties of the deceased to his beneficiaries as directed by the Will.
It is important to note that dealing with the property of a deceased person without written authority or a probate granted by a competent court of law provides the avenue for civil or criminal suits which may lead to family rifts and other time lapsing events.
Where there is no valid Will
A person is said to have died intestate if he died without executing a Will. In such circumstances, a competent court of law is left with the decision to determine the person(s) who may manage or benefit from the estate of the deceased.
The court will empower administrators to supervise the assets and liabilities of the deceased and will consider the interest of the applicants before the appointment. Typically, an immediate family member is appointed, most often one that stands as the next of kin in the deceased’s registration documents with the relevant financial bodies or organisations concerned, such as insurance companies, pension administrators and banks.
A letter of administration is granted to the administrator by the Court to the most suitable and competent individual(s) and it will supercede any other authority except where there exists a Will which provides for an executor.
An application for letter of administration is made at least 14 days after the death of the deceased. It is a written application accompanied by supporting documents including a sworn declaration on oath by the executor and a bond completed by the executor(s) to cover the assets and liabilities of the deceased (similar to a probate application).
The application is also to be published in any national newspaper within the area where the deceased resided. The aim of this is to put concerned members of the public on notice of the applicants, the deceased’s estate and concerned parties’ rights to object to the appointment of an administrator where necessary. Any member of the public can object within 8 days of the publication and this leaves the court to determine whether or not to appoint such a person.
Where the court decides in favour of the applicant, the letter of administration is granted and the administrator is automatically vested with the rights over the property of the deceased.
The misappropriation of the estate of a deceased person can be avoided upon the grant of a probate or letter of administration to a person validly appointed by the court or deceased person. Berkeley legal is capable of providing legal services in this regard.
The information provided in this article is for general informational purposes only and does not constitute legal advice. If you require specific legal advice on any of the matters covered in this article please contact firstname.lastname@example.org