PROBATE PRACTICE, INHERITANCE AND ADMINISTRATION OF ESTATE
Inheritance Rights and Administration of Estate Laws in Nigeria
Probate is the term for a legal process in which a will is reviewed to determine whether it is valid and authentic. Probate also refers to the general administering of a deceased person's will or the estate of a deceased person without a will. The essence of administration of Estates and Probate is to ensure the passing of the property of a deceased to the beneficiaries and the proper administration of the remaining property which is referred to as an Estate. For the purpose of this article, we would be focusing on inheritance rights when a person dies intestate, i.e. without a will.
Intestate administration is one of the major functions of the probate registry. It comprises of the procedure involved for personal representatives of a deceased person who died without a Will to apply for a grant of Letters of Administration and to administer the deceased’s estate.
Letters of Administration is the Legal Instrument issued by a Probate Registrar, which confers legal powers on the Administrators of a Deceased’s Estate. Letters of administration serve as the origin of powers of administrators. They are granted for simple administration where the deceased died either:
ï Wholly intestate; or
ï Where there is partial intestacy or
ï Where no executors where appointed under the Will.
At the time of the death of a deceased, the deceased’s estate is vested in the Chief Judge of the
state where he died, this is where the deceased died intestate and the administrators cannot act
without letters of administration.
There are two types of Letters of Administration:
a. Letters of Administration (without Will)
b. Letters of Administration (with Will annexed)
Usually, an application for Letters of Administration will be made by the applicant or by his/her solicitor to the probate registry. The following documents are usually attached to the application form
a. Payment form
b. Affidavit of no previous application
c. Deceased’s death certificate
d. Declaration as to Next of Kin
e. Inventory
f. Particulars of Freehold/Leasehold Property left by the deceased
g. Bank Certificate (when applicable)
h. Oath for Administration
i. Administration Bond
j. Justification of Sureties
k. Surety’s Guarantee Form
The Application is afterwards screened and approved formally by the probate registry. A Legal Notice of the application and claim is to be published in a National Newspaper or Government Gazette, and a period of 21 days is given for any person objecting to the grant to enter a Caveat at the probate registry. At the expiration of the 21 days and in the absence of lodgment of Caveat, minutes and order will be generated and sent to the Probate Judge for approval. Upon approval of the probate judge, Letters of Administration will be
issued and duly signed by the Probate Registrar.
It is important to point out that Letter of Administration with will annexed is given where:
a. No executor was appointed in the will
b. A sole executor who is a minor is appointed
c. Executor(s) appointed renounce probate.
d. Executor(s) appointed in the will predeceased the testator.
e. Where the executors appointed die before taking out probate.
f. Where the appointment of an executor is void for uncertainty
g. A sole executor appointed becomes incapable to act by reason of mental and
physical infirmity.
h. Where there is break in chain of representation either because the sole executor
or last surviving executor dies intestate or without appointing an executor. The
chain of representation is broken where the sole executor or last surviving
executor:
i. Dies intestate
ii. Fails to appoint executor in his will
iii. Fails to obtain probate
iv. He renounces probate
The person entitled to letters of administration in intestacy is Next-of-Kin of the deceased. The
Next-of-Kin here (by order of priority) are:
ï Spouse (This is also dependent on the type of marriage which could be statutory or
customary marriage)
1 Children
2 Parents
3 Brothers and Sisters of full blood
4 Brothers and Sisters of Half blood
5 Grand parents
6 Uncles and Sisters of full blood
7 Uncles and Sisters of Half blood
8 Administrator-General
Under customary law however, customary succession, is succession that is not in accordance with the statute, but is rather in accordance with the traditions, customs and practices of the local people which are enforceable and binding between the parties which are subject to it. Customary inheritance
therefore, is according to customs, beliefs and traditions of the people, and is mainly intestate. The Customary Law binding the deceased is the appropriate law to be applied. Unlike under statutory law, where a man can bequeath all his assets to total strangers, children are the exclusive beneficiaries to the estate of a deceased person under the Customary Law. While some tribes do not discriminate between the gender of the children, some other tribes do. Though the Yoruba of
south western Nigeria do not distinguish between male and female in the distribution of their father’s property, some other tribes like the Binis and the Ibos does. However, there has been a plethora of court judgments setting aside such customs as repugnant to natural justice and thereby unenforceable.
The qualification for inheritance is generally traced or dependent on blood relationship. A person cannot qualify to inherit from a deceased on any basis under Customary Law outside being of the same blood. Thus, the primary heirs to a man’s estate under the Customary Law are his children. Where the marriage was celebrated under the Act, both husband and wife may inherit each other’s estate on intestacy. Where however, the marriage was contracted under the Customary Law, a widow, on the intestacy of her husband, is completely disinherited despite any contributions to the man’s success. No system confers on such a widow any beneficial rights of inheritance safe of course for benefits she may enjoy through her children’s right.
Under the Yoruba customs, two methods of distribution are settled to be in place. These are the Idi-Igi method where property is shared according to the number of wives and the Ori-Ojori method where by property is distributed according to the number of children. Under the Benin Custom of Igiogbe for example, the eldest surviving son of a deceased inherits the house where the deceased lived and died to the exclusion of all others. This right enjoyed by the eldest son of the deceased, cannot be taken away from him not even by way of a will. Customary succession amongst the Ibos is such that the eldest son of the deceased succeeds to his estate. This is known amongst the Ibos as “Okpala” or “Diokpa”. The Okpala who is the eldest son, steps into his father’s shoes upon the death of the latter and becomes head of the family. Where however, the deceased
father had more than one wife, the eldest sons of each of the wives takes part in the sharing of the estate. The rights of the Okpala is however exercised in trust for his younger siblings. Where however, the deceased is not survived by a son, his estate is inherited by his surviving brothers of full blood or his father in that order.
We would love to hear from you in the comment section on any questions you might be having as regards inheritance in Nigeria.
Comments 0