Intestacy: Recovering the Properties of Loved Ones Who Died Without A Will

Introduction:

Let me start by saying; no one ever wants his/her loved ones to die!

So automatically, every publication that has to do with steps to take upon/after the demise of a loved one is usually consciously or unconsciously avoided (especially in our African society – where we are taught no say “God Forbid” to talks bordering on things like death). Death however is an inevitable phenomenon that enjoys a certainty of occurrence in human existence, so the sooner we brace ourselves for this very certain event, the better for us all.

Note: Because the majority of the readers of this article would be non-lawyers who are keen on getting real-time knowledge on the topic in issue, I shall go straight to the point, and cut down on the legal nomenclature that would ordinarily have appeared.

(Now back to our topic!)

Approaching the issue of death from the legal viewpoint very quickly shows that a couple of resulting effects would play out upon the demise of a person within the jurisdiction of the Federal Republic of Nigeria. At death, whether the deceased died leaving a Will or not, carefully following the stipulated Probate procedures is required for the administration of the estate of the deceased.

It would be pertinent at this point for me to spell out the 3 contexts under which the word ‘Probate’ is typically used.

  1. Probate (as a certificate) is the certificate issued by a Court representing the fact that the Will of a deceased is valid, and that the executors appointed under the Will are authorized to administer the estate of the deceased. Probate (in this context) is usually granted to the executors (as appointed under the Will) after the procedures laid down by the applicable laws regulating the process have been followed and the required standards have been met.

  2. Probate (as an arm of legal practice) is the arm of legal practice that deals with the application for the grant of Probate and Rights of administration of the estate of a deceased. Also known as ‘Probate Practice’, it typically requires ample experience and special knowledge (on the part of the Legal Practitioner) of the ups and downs of the processes involved in this sphere of the legal practice.

  3. Probate (as an organ of the Court) is the organ of the Court empowered by law to superintend over matters relating to the administration of the estate of a deceased. Properly called the ‘Probate Registry’, it is typically an extension of the State High Court, and is headed by a Probate Registrar.

Under the relevant laws, a person is said to have died ‘Testate’ or ‘Intestate’.

Where a person dies leaving behind a (valid) Will, such a person is said to have died Testate. In this case, his executors (as named in the Will) would approach the Court for the grant of Probate to administer the estate per the directives of the deceased.

Where a person however dies without leaving a (valid) Will, such a person is said to have died Intestate. And in such case, interested parties would approach the Court for the grant of a Letter of Administration to administer the estate of the deceased.

Applicable Laws

The law which regulate the estates of deceased persons in Nigeria is the Administration of Estates Law (of the particular state where the deceased was resident), and the law which would provide for the procedures to be adopted in the grant of the right to administer the estate in question is the High Court (Civil Procedure) Rules (of the applicable state).

A strict adherence to the provisions of these laws is always typically enforced at the Probate Registry. This is especially as the Applicable laws provide for various forms of checks and verifications of the claims made by persons applying for the grant of Letters of Administration in order to prevent the estate of a deceased, or any part of it, from falling into wrong hands.

Who Is Entitled To Administer The Estate Of A Deceased Who Died Intestate?

The answer to this question is predicated on a number of further questions, viz:

  1. Was The Deceased A Public Officer?

If he/she was a public officer, the names of the next-of-kin are clearly stated on the official records of Service of the deceased. In such a case, the Next-of-kin so mentioned become the applicants entitled to Letters of Administration over the deceased’s estate.

  1. Was The Deceased Married Under The Act Or Under Native Law And Custom?

If the deceased’s marriage was contracted under the Act, the surviving spouse can administer the Estate exclusively, without the deceased’s family interference.

If on the other hand the marriage was contracted under native law and custom, the surviving spouse would administer the estate with members of the deceased’s family.

3. Was The Deceased A Polygamist Or Monogamist?

In the case of a man, if he had more than one wife while alive, each of the wives’ part of the family will be duly represented in the administration of the estate.

NB: The Estate Law prescribe a minimum of two persons and a maximum of four persons to administer a deceased’s estate – except as predicated on a legal exception to the Rule.

Procedure for the Grant of Letters Of Administration 

A Letter of Administration, as has been pointed out, is a Legal Instrument issued upon the order of the Chief Judge of a State by the Probate Registrar. It confers legal powers of the administration of the estate of a deceased who died intestate on the beneficiaries of the Estate.

  • The process is initiated by a formal application for Letters of Administration prepared by a legal practitioner on behalf of the applicants. Accompanying said applications should be:

  1. Original death certificate of the deceased

  2. Marriage certificate of the deceased, and

  3. Certified True Copy of the deceased’s Record of service (if the deceased was a public officer)

  • After the application has formally been given approval by the Probate Registrar or by a scheduled officer in the Registry, the following Probate Forms would be issued to the applicants for completion:

  1. Next-of-kin form

  2. Inventory form

  3. Probate Bank certificate (where applicable), and

  4. Probate Payment form.

  • Thereafter, such applications and claims would be published in any of the National newspapers or Government Gazette (after the publication fee must have been paid).

Said publication (Legal Notice) would remain in place for 21 days from the date of publication. The publication (Legal Notice) is important because it enables all relevant parties/stakeholders who may wish to lay claim on the deceased’s estate to enter a Caveat.

  • At the expiration of the 21 days and in the absence of any Caveat, the Probate Registry would proceed to issue the following set of Probate Forms to the applicants for completion:

  1. Oath for Administration (Without Will)

  2. Administration Bond (Without Will)

  3. Justification of Sureties forms, and

  4. Application for Suretyship forms.

  • And finally, the Letter of Administration would be drawn up, signed by the Probate Registrar and issued to the applicants (now Administrators of the deceased’s estate).

In conclusion, it must be stated that, contrary to the popular misconception that this exercise could be undertaken by just anybody, consulting and briefing a capable legal practitioner (who is knowledgeable in the laws and Rules regulating the practice and procedure of probate/administration of Estate matters in the respective jurisdiction) is strongly advised for optimum results and a smooth process.

Written by Chisom A. C. Okeke Esq.

08167700218

(Awka, Anambra State).

4 thoughts on “Intestacy: Recovering the Properties of Loved Ones Who Died Without A Will

Add yours

  1. Very informative, I’m so subscribing to this site. I have very limited knowledge on Nigerian legislations. But this makes me wonder what the tax is like for ‘Inheritance Tax’. If there’s any at all, are there thresholds?

    Liked by 1 person

    1. The Capital Transfer Tax Act of 1979 (CTTA) was a federal legislation that imposed a tax on the transfer of assets upon the death of the owner of the property.
      However that legislation has long been repealed.

      The Capital Gains Tax Act (CGTA) 2004 provides for taxes payable upon transfer of assets inter vivos (by a living person).
      The law is however silent on the transfer of said assets after the owner dies.
      So it would be quite correct to say that our Tax framework does not provide for Inheritance Tax.

      However, in the process of obtaining Grant of Probate/Letters of Administration, a compulsory requirement is the payment of an ‘Estate Duty’ which is typically affixed at 10% of the value of the aggregate of the deceased’s estate.

      This Estate Tax could thus be said to be the nearest equivalent of Inheritance Tax under our Estate/Inheritance Laws.

      Liked by 1 person

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