By Margaret Ezekiel Ogbonnah
The area of law known as “Estate Administration” is primarily concerned with legal rights and responsibilities that arise after death. The property of the deceased, both real and personal, passes to the Administrator upon his appointment by the court to the extent it passes to an Executor. Still, in the interval between the death of the deceased and the appointment of an administrator, the real and personal estate of the deceased is vested in the Court until administration is granted. The courts, in a plethora of cases, have held that where a person dies intestate, his real and personal estate, until administration is granted in respect thereof to the administrators of the estate, shall vest in the Court who shall have and exercise such powers in relation to the realization, preservation or prevention of waste of the estate.
The management and administration of a deceased’s property is regulated by the Administration of Estates Law of various States in Nigeria and the High Court (Civil Procedure) Rules of each State of the Federation. The Administration of Estates Law and the Rules of Procedure on Probate are to forestall a situation where the properties left behind by deceased persons fall into the hands of devious persons, particularly those the deceased would not ordinarily wish to inherit his or her properties. The essence of administration of estates and probate is to ensure the passing of the property of a deceased as collated, to the beneficiaries. This article will be discussing the probate registry and the procedures for the administration of estates in Nigeria.
THE PROBATE REGISTRY
The Probate Registry is usually a division of the High Court of most states of the Federation and is subject to the supervision of the High Court of a State. The Probate Registry has the exclusive jurisdiction to issue and revoke Grant of Probate and Letters of Administration of the real and personal estate of a deceased person to his personal representatives and all other ancillary matters that relate to the administration of the estate such as Lodgment of Wills and Codicils, Search of Will, Reading of Will, Processing and Issuance of Grants, Resealing of Probate or Letters of Administration, Collection and Maintenance of Indexed Caveats entered in the Registry, Double Probate, Confirmation/Verification of Grants as well as several other responsibilities as spelt out in laws and regulations forming probate practice in Nigeria.¹
The duties of the Probate Registry are subject to review by the court when the proper procedure is not followed and upon an application filed at the High Court by an aggrieved person.
ADMINISTRATION OF ESTATE AND PROBATE
Probate Administration can be broadly defined as the procedure for the granting and revoking of the Instrument of Grant of Probate (in case of estate administration) or Letters of Administration (in case of intestate administration) in respect of the Estate of a deceased.
The Grant of Probate is the authority that validates the powers and functions of an Executor to the Estate of a deceased. Without prejudice to the fact that the authority of an Executor to act is derived from the Will, the Probate Grant gives the Executor the moral and legal authority to continue to act in that capacity. The Executor is not expected to act in that capacity without the Grant of Probate.² An Administrator, however, derives powers to act from the grant of the Letter of Administration and where there is no grant, he cannot act as an Administrator.
Similarly, and in both instances, the power to administer is limited to the assets covered by the grant. should also be noted that the Administration of Estate laws of the various states regulates the administration of estate of a deceased person, while the procedure for the grant of the right to administer the estate of the deceased person is provided for in the High Court (Civil Procedure) Rules of the states of the Federation.
The Administration of Estate laws in Nigeria in tandem with the Rules of Court, encompasses the legal structure for the administration of the estate of the deceased persons. It entails the verification of the claims of persons claiming to be entitled to the estate of deceased persons and subsequently grant the power to administer the estate to the persons scaled through the verification process at the Probate Registry.³
The powers and authority of personal representatives (Executors/Administrators) to act and administer the estate of a deceased is derived from a will where the deceased died testate. The Grant of Probate and Letter of Administration validates such powers and authority. There are basically three (3) categories of grant of authority to administer the estate of deceased persons. These are:
a) Grant of Probate–This Grant is issued where the deceased died testate, leaving a valid Will and had appointed executors under the Will who are willing, capable and available act and carry out the wishes of the testator.
Here the main duty of the court is to issue the Grant of Probate to the executors named in the Will to administer the Estate.
b) Grant of Letters of Administration with Will annexed–This grant is issued where the deceased died testate (leaving a valid Will) but failed to appoint executors under the Will or the executors appointed renounced probate or are incapable of applying (incapacity or out of jurisdiction) or have long died or are infants, or are not of sound mind etc. In such cases the court is concerned with the grant of Letters of Administration to persons who are interested in the estate to administer the estate of the testator according to the terms of his WILL
c) Grant of Letters of Administration without Will–This is issued where a deceased person died without a Will(total intestacy)and so did not appoint executors or where some part of his estate is not covered by the Will and there is no residuary clause(partial intestacy)or where the Will is declared invalid.
Furthermore, Grant of Probate is obtained in the case of testate succession, while Letters of Administration is obtained with respect to intestate succession and testate succession in some instances. While it is possible to obtain Letters of Administration for testate succession, it is impossible to obtain probate for intestate succession.
A Grant of Probate is a legal instrument which provides the legal basis for the enforcement of the contents of the Will whilst the letters of administration is the basis of the legal right of the administrators who have been appointed by the Court to supervise the liquidation and distribution of the deceased person’s estate. The effect of a Grant of Probate or Letter of Administration is that it is accepted as conclusive evidence of the Executors’/Administrators’ title as personal representatives of the Estate.⁴
PROCEDURES FOR GRANT OF PROBATE AND LETTERS OF ADMINISTRATION
At the Probate Registry of every state, including the Federal Capital Territory, there are certain procedures that must be followed before a grant of probate or a letter of administration is issued to an applicant. Testate succession involves the issuance of a grant of probate to persons appointed by a deceased person in his Will. The procedure for the grant of probate depends on whether the application for probate is contentious (solemn form) or non-contentious (common form) in nature.⁵
The application forms for grant of probate consist of the following:
- Bank certificate,
- Application for grant of probate of the Will, oath for Executor/affidavit of attesting
- Witness of the Will, inventory of assets, particulars of leasehold/freehold properties left by the deceased and lastly, a schedule of debts and funeral expenses.
The workflow for the process of issuing a grant of probate upon the discovery of a Will and after an application has been submitted to the Probate Registry is outlined as follows:
- Upon the discovery of the Will of the deceased person, whether lodged at the High Court or found in a place where the deceased person kept it before passing away, the family members or solicitor representing the family members will apply to the Probate Registry for the official reading of the Will.
- Probate Registrar shall, based on information supplied by the applicants and upon production of an official copy of the death certificate of the deceased person, cause a letter or a series of letters to be issued to the interested members of the deceased’s family, inviting them for an opening and reading of the Will, which shall take place at the Probate Registrar’s office or any place designated by the Probate Registrar.
- At the date of the Will-reading exercise, the Probate Registrar or delegated officer shall cause to be opened, in the presence of all the invited and present family members, an envelope containing the Will of the deceased person, which would have been sealed upon the lodgment of same. After the public opening of the Will, the reading of same shall be done by the Probate Registrar or any delegated officer.
- It is only after the Will has been read that the appointed Executors can proceed to apply for a set of application forms to be issued for the purpose of applying for the grant of probate of the Will, in the absence of any opposition to the validity of the Will. It is worthy of mention, that if there is any opposition to the validity of the Will, the parties are referred or advised to seek refuge in court which shall pronounce same or otherwise.
- After the Executors have filled and signed the forms, they or their appointed solicitor shall submit the set of forms with accompanying requirements/documents which will include the photographs and means of identification of the Executors as well as other affidavits and documents that may be required by the Probate Registry. These requirements may vary because each application for a grant of probate is unique.
- After the submission of the application, either online or physically at the Probate Registry, a document known as a Bank certificate shall be issued. The purpose of the Bank certificate is to capture all liquid assets such as shares/stock and monies in Bank accounts which hold funds belonging to the deceased person. This Bank certificate could also be obtained at the time the application forms are obtained.
- This Bank certificate will be taken to all the Banks and Registrars of the Companies where the deceased person owned accounts and shares, where the Information relating to such accounts and shareholding will be filled and Endorsed on the Bank certificate. Such information includes the Bank balances and share portfolio.
- Where real property forms part of the Estate’s assets, the Valuation Unit of the Probate Registry will be required to conduct an inspection of the property/properties for the purpose of ascribing a value thereto, after which an assessment for the payment of estate fee shall be issued. This is usually calculated. As a certain percentage of the value of the estate. The sum contained in the Assessment Sheet/probate pay sheet shall constitute the money to be paid as Probate fee/estate duty.
- After the assessment has been issued by the Probate Registry, the applicant shall collect same and proceed to a designated collection Bank to make the payment after which an official government receipt, acknowledging payment will be issued to the applicant/s for submission at the Probate Registry.
- Before payment of the estate fee as assessed the file shall be passed to the department in charge of the marking of the Will. The appointed Executors are expected to attend the Registry for the Will-marking exercise which entails the executors attesting that they shall do as expected by the Will and by law. They will also be required to sign against their names as stamped on the original Will.
- After the Will has been marked, the file shall be passed to the typing pool for the preparation of the Order, which the Probate Judge (usually the Chief Judge) is expected to approve before the preparation of the Grant of Probate.
- After this, the file is sent back to the Registry and the Grant of Probate is prepared, checked and sent to the office of the Probate Registrar (the Chief Registrar of the High Court) for approval. The Probate Registrar, after verifying that due process has been followed, will append her/his signature to the Grant of Probate and the files shall be returned to the Probate Registry for the sealing of the Grant of Probate and delivery of same to the applicant/s or the applicant/representative.⁶
The procedure outlined above also applies to Intestate Administration, however, the difference with the application for Letters of Administration is that the deceased person did not write a Will to guide the administration of his/her estate or where the deceased made a Will but either did not name any executors or the named executors are not capable .
It is important to note that not just any one can apply for the Letters of Administration. The Probate Registry usually considers the provisions of the Law which states the order of distribution of an intestate’s assets with the spouse and children of the deceased person as first in line.
More so, that Letters of Administration shall not be granted to more than four persons in respect of the same property. Administration of Estate laws of various States provided for persons who shall be deemed to be interested in the estate of a deceased intestate and shall be entitled to a grant of administration in respect of the estate and in the order of priority as listed⁷
- Submission of Application Form – The application forms for Letters of Administration consist of the Bank certificate, application for letters of administration (without Will), oath for administration (without Will), administration bond (without Will), declaration as to next of kin form, Inventory of assets form, particulars of freehold/leasehold properties left by the deceased, schedule of debts and funeral expenses.
- Valuation of Assets – Once the forms have been filled and a value of the assets declared is calculated, the assessment sheet/pay sheet is issued for the applicants to pay the probate/estate fees.
- Publication – Before payment is made, there is the publication of the application for Letters of Administration inform of a gazette in the deceased Local Government Area for 21 days. The Secretary of the Local Government gives legal notice of the publication of the gazette by a letter to the Probate Registry. Some states like Lagos, and Abuja do publish the Estate in a national daily newspaper. The purpose of the publication is to ensure that the public is aware that Letters of Administration will be issued to the applying administrators, in the absence of any opposition.
- Caveat – This publication is an opportunity for any member of the public to file a caveat or enter an opposition to the process which will be upheld and referred to the court, if the basis of the opposition is substantial. Where there is no opposition, after 21 days from the date of the publication, it will then progress to the next stage. the process will continue by the preparation of the order of the Chief Judge for the issuance or grant of the Letters of Administration.
- Approval of the Chief Judge – Where there is no opposition the Chief Judge would an order/Approval for the issuance or grant of the Letters of Administration. After approval, the Letters of Administration will be prepared and thereafter dispatched to the Probate Registrar to be signed and delivered to the applicant/s.
In Abuja and Enugu, Probate or Letters of Administration with Will annexed shall not be issued within seven (7) days from the death of the testator; and, probate letters of administration without Will annexed shall not be issued within fourteen (14) days from the death of the deceased.⁸
In Lagos, on the other hand, Probate or Letters of Administration with Will annexed shall not be issued within fourteen (14) days from the death of the testator; and,
Letters of Administration without Will annexed shall not be issued within twenty-one (21) days from the death of the deceased.⁹
Apart from the two major instruments issued at the Probate Registry for the administration of the estate of the deceased, there are other instruments issued for total and effective administration of the estate of the deceased, these are Certificate of Further Security and Resealing.
THE PURPOSE OF A CAVEAT
The whole essence of a caveat being entered by a person interested in the grant of probate is to give notice to the Probate Registrar to desist from making a Grant of Probate in the face of the caveat unless the Court has given a hearing for the determination of the success or lack of success as it relates to the caveat.¹⁰
RESEALING OF GRANTS
There are instances where the beneficiaries of the deceased are unable to discover all the estates of their deceased relative at the time of initial grant. In such a situation, for as many times as they discover any such estate not captioned in the Letters of Administration, the Administrators a real ways at liberty to apply to the Probate Registrar for Certificate of further Security or what we call additional security. Once the forms are processed and estate fees paid, it is granted.
It is also the duty of the Probate Registry to Reseal the Probate of the Will or Letters of Administration to take care of any real property of the deceased not situate in the state where the Probate of the Will or Letters of Administration was issued. In this case, all the executors or the administrators need do is to obtain a Certified True Copy of the instrument from the issuing state and present same at the Probate Registry of the state where the real estate is situate and the property is resealed upon payment of the estate fee. Resealing is applicable only to real estate.¹¹
The procedure explained above is for non-contentious grants or common form.
PROCEDURE TO OBTAIN PROBATE AND ADMINISTRATION IN CONTENTIOUS CASES
Application for probate is contentious when:
- The validity of the Will is contested,
- The appointment of an executor is challenged
- Probate is sought to be revoked or denied.
- Members of the family disagree on who to appoint an administrator (especially in a polygamous family.
- Upon unsealing and reading of a Will, some beneficiaries may come up with some issues ranging from non-execution of the Will by the testator to none acceptance of the Named executors or in an intestate administration where the beneficiaries disagree on who to be appointed administrator, after the publication of the application for grant of Probate or Letters of Administration as the case may be, any interested member of the deceased family may enter a caveat or give notice to the Probate Registrar to desist from making a grant in the face of the caveat until the Court decides otherwise.
Caveat; caveat is issued to challenge an application for grant of probate. An application for Grant of probate becomes contentious when a caveat is filed against the application. That is, it is the filing of a caveat that makes an application for grant of probate Contentious.¹² A caveat has the life span of 3months in Lagos and Enugu; 6months in Abuja and Probate should not be issued or granted while caveat is still in force unless withdrawn.¹³
It is worthy of note that where the executors or Administrators as the case may be have complied with the above normal requirements, a Probate Registrar will grant Probate/Letters of Administration to the applicants. With the Probate/Letters of Administration, the Executors/Administrators can then administer, manage, share, sell, lease and use the property of the deceased as if they were the deceased himself because they have stepped into his shoes.
Where the executors are different from beneficiaries, such executors upon obtaining a grant of probate are equally empowered to share, devolve, vest, transmit and transfer the property of the deceased to his beneficiaries according to the deceased’s Will.
Finally, it is important to state that administration of a deceased person’s Estate focuses on the need to be accountable. A personal representative standing in a fiduciary position unless expressly authorised to do so, is not allowed to make a profit by the trust either directly or indirectly. He is accountable for any profit made from the constituted trust. He must not in any way make use of the estate property or of his position for his own interest or private advantage. He may not buy the estate property from himself or for himself or his co-administrator/executor. He cannot occupy the two positions of vendor and purchaser at the same time. Any such purchase is voidable at the instance of any beneficiary, however fair the transaction may be and however, full a disclosure of all material facts may have been made to the beneficiaries especially where the price is considered to be below market value.
- Property Law Practice In Nigeria, By Y.Y. DADEM.
- A Paper Presented At The National Workshop Organised For The Chief Register As, Deputy Chief Register As, Directors And Secretaries Jscs By The National Judicial Institute (Nji) From August 30th To September 1st 2021 By Nkechi Esther Ngwu.
- Real Estate and Succession 6th April 2020. By Tola Ayanru
- Administration of Estates Lawby Unini Chioma -June 2, 2020.
- Order 62, of High Court of the Federal Capital Territory, Abuja (Civil Procedure Rules)
- Order 47, of High Court of the Federal Capital Territory, Abuja (Civil Procedure Rules)
- Order 64, of High Court of the Federal Capital Territory, Abuja (Civil Procedure Rules)
- High Court of Lagos Civil Procedure Rules 2019 -Order 61, Rule 16 (1).
- High Court of Lagos Civil Procedure Rules 2019- Order 61 Rule 16 (2).
This article is for information purposes, it may not reflect the current state of the law, and is therefore not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.