Introduction to Probate
Probate is the process of administering a person’s Estate after their death. The administration of a deceased’s Estate requires a Grant of Probate or Letter of Administration. Probate outlines the procedure for issuing these documents in both contentious and non-contentious cases. The power and authority of an Executor to act and administer the Estate of a deceased is derived from the Will. If the deceased died with a Will, the Grant of Probate confirms the powers. However, if the deceased died intestate (without a
will) the Letter of Administration validates the powers and authority.
Probate is an important legal process that ensures the Deceased’s assets are distributed according to their wishes or the law. It also helps to settle any debts and taxes owed by the deceased before distributing the remaining assets to beneficiaries. Therefore, it is important to seek legal advice when dealing with probate matters to ensure that everything is done correctly and in compliance with the relevant laws and regulations.
KEY TERMS
Grant of Probate– a legal instrument that confirms the authority of the Executor to administer the Estate and distribute the assets of the deceased according to the terms of the Will.
Letter of Administration– a legal document confirming the authority of the Executor to administer the Estate of a person who died without a will. While it is possible to obtain Letters of Administration for a person who dies intestate, it is impossible to obtain grant of probate for them.
PROBATE LAWS IN NIGERIA
The administration, practice, and procedure for probate in Nigeria are principally regulated by the Administration of Estate Laws of the various states of the Federation (hereinafter referred to as “the Administration”) and the High Court (Civil Procedure) Rules of each State of the Federation. The Administration and the Probate Rules of Procedure are made with the intent to keep the properties left behind by deceased persons from falling into the hands of unscrupulous persons and those the deceased would not have intended to inherit his or her properties.
The Administration does not apply to the distribution, inheritance, or succession of the Estate of a deceased person, whose affairs were regulated by Customary Law during his or her lifetime. It does, however, provide a legal system of administration of the Estate of deceased persons, which involves verification of claims to the deceased’s Estate and granting authority to those who have passed through the verification process at the Probate Registry.
Three basic categories of grant of authority to administer the estate of a deceased person:
- Grant of Probate- This is usually granted where the deceased dies testate, leaving a valid Will appointing executors who are willing, capable and available to act in accordance to the instructions given to them in the Will by the Testator. Here, the main concern of the court is to grant probate to the executors named in the Will to administer the estate.
- Grant of Letters of Administration with Will annexed- Here, the deceased died testate (leaving a Will), but failed to appoint executors under the Will or the executors appointed renounce probate, are incapable of applying for probate (incapacity or out of jurisdiction), have died before the Testator or are infants 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 their Will.
- Grant of Letters of Administration without a Will– This is issued where the deceased died without leaving a Will (total intestacy) 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.
A Grant of Probate is obtained in the case of testate succession, while Letters of Administration are 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.
CONCLUSION
Probate is a crucial process in Nigeria that ensures the orderly distribution of a deceased person’s estate according to their wishes and for the benefit of their intended beneficiaries. Therefore, it is important to understand the specific laws and regulations of each state in Nigeria when dealing with probate matters, as they may vary slightly from one jurisdiction to another. Seeking the guidance of a legal professional can help ensure that the probate process is carried out smoothly and in accordance with applicable laws.
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