Grant of Probate II

PROCEDURE FOR COMMON FORM APPLICATION

Last week, we discussed what Probate is and why it is important. To recap Probate is the process of administering a person’s Estate after their death and requires a Grant of Probate or Letter of Administration to confer authority on the Executor administer the Estate of a deceased. The property of the deceased, both real and personal, pass to the administrator upon their appointment by the court to the extent as it passes to an executor, but in the interval between the death of the deceased and the appointment of an administrator, both the real and personal estate of the deceased vests in the Court until administration is granted. This article shall outline the procedure for obtaining a grant of probate for a non-contentious form.

PROCEDURE FOR OBTAINING GRANT OF PROBATE

At the Probate Registry of every state, there are certain procedures that must be followed before a grant of probate or letters 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 their Will. The procedure for the grant of probate depends on the form of the application. The two major forms are:

• Non-contentious (common form) or
• Contentious (solemn form)

Procedure for Non-contentious grants (common form)

1. Discovery of the Will
2. Marking and reading of the Will

• Application for probate

1. Proof of the Will
2. Grant of probate

 

1. Discovery, Marking and Reading of the Will: The search for the testator’s Will begins after the burial ceremonies are over. Usually, the original copy of the Will is kept at the probate registry. If the Will is in the possession/custody of the testator or any other person, he/she is mandated to send it to the probate registry within three (3) months of his/her knowledge of the testator’s death.

If the Will is found at the probate registry, it will be read at a designated time or day as may be determined by the Probate Registrar. The Will must be read in the Probate Registry or any place the Probate Registrar determines, and they shall be the supervising officer.

Where the Will cannot be found and there are reasonable grounds to believe that a person has knowledge of any testamentary document of the testator, the Court may summarily order that such a person be examined or interrogated in respect of the document in court. The probate register may summon the persons interested in the estate of the deceased. When they appear on a fixed date, the Registrar brings out the Will, and reads the Will in the presence of the persons present. The Registrar then makes a record of the proceedings for the day.

1. Application for probate: after the reading of the Will, the executors immediately apply for probate. The application is usually made to the Registrar.

The application must include:

• Particulars of the testator: name, marital status before death, names of spouse and children
• Date and place of death of the testator
• That the testator was resident within jurisdiction shortly before his death
• That the testator was found to have made a Will
• That the applicants are the executors named in the Will.

The documents needed to obtain a grant of probate and which will accompany the application are:

• Application for grant of probate (whether by letter (Lagos) or Petition (Abuja)).
• A copy of the Will
• The Death certificate of the testator
• Proof of identity of the applicant(s) and proof of identity of the testator such as drivers’ licence, national I.D., international passport etc.
• Affidavit stating the place and date of death of the testator and his place of domicile shortly before his death
• Declaration of all the personal properties of the testator
• Affidavit of due execution and affidavit as to handwriting, if applicable.
• Bank certificate
• Duly completed inventory specifically listing the properties of the testator
• Passport photographs of the executors and attesting Witnesses.

Where an application for probate grant has been filed, the Registrar is expected to wait for any objections and caveats, if any, to be filed by interested parties.

• Proving the will: the executor is expected to prove the Will. Where he fails, neglects or delays in doing so, a notice (Citation) can and shall be served on him directing him to prove the Will or renounce probate. A citation shall be accompanied by a verifying affidavit verifying the facts stated in the Citation. It must be noted that a Citation can only be issued by a person who has an interest in the estate of the testator.

The person cited (executor) must enter an appearance to the Citation within eight (8) days from the date of service of the citation on him. He is to enter the appearance by completing and filing FORM 6 (Lagos) or FORM 191 (Abuja).

In proving the Will, its due execution must be proved even if witnesses have to be called.

1. Grant of probate: when the probate Registrar is satisfied that the Will was duly executed and that the testator made the Will with knowledge of its contents, the registrar would grant the probate.

Conclusion

In conclusion, obtaining a grant of probate is a crucial part of administering a deceased person’s estate. The process for obtaining a grant of probate can be divided into two categories: non-contentious (common form) and contentious (solemn form). This article focused on the procedure for obtaining a non-contentious grant of probate. The steps involved include discovering, marking, and reading the Will; applying for probate; proving the Will; and finally, obtaining the grant of probate. Though the process can be quite detailed and involves various documentation and procedures, it is essential to follow the procedure correctly to avoid delays or issues during the probate process. Overall, obtaining a grant of probate is an important step in ensuring that the deceased person’s estate is administered according to their wishes.

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