Probate is the process that proves that the Will of a deceased person is valid so that their property can be distributed as directed by them in the Will and testament.
GRANT OF PROBATE OR LETTERS OF ADMINISTRATION WITH WILL
A grant of probate or letters of administration (legal representation) thus gives lawful authority for the administration of a deceased’s estate. However, no valid application for such legal representation can be made until 14 days after the death of the testator (Order 57 (1) High Court of Lagos State (Civil Procedure) Rules, 2012).
An application can be brought personally by an interested person or through a legal practitioner
(Order 57 (3), (4) ).
Discovery of Will
The first step in seeking probate of a Will is to ascertain that a Will was made and to procure the original or a certified true copy of the will. Where the Will was lodged for safe custody in the Probate Registry in accordance with Order 58 of the Lagos High Court Rules, an application to conduct a search will be made. This will be followed by an application for a certified true copy of the Will, accompanied by proof of demise such as death certificate, once the Will is found.
Reading of Will
On discovery of the Will at the Registry, persons interested will apply directly or through their Solicitor to the Probate Registrar for an appointment to attend a reading of the Will. At the reading of the Will, the Registrar will bring out the Will in the presence of those interested, break the sealed wax on it and read the Will out. Afterwards, he/she will make a record of the day’s proceedings.
APPLICATION FOR GRANT OF PROBATE
An applicant will obtain from the Registry, the following probate forms titled as follows:
Bank Certificate
This is a certificate issued by the Probate Registrar that authorises the applicants to enquire as to any money standing to the credit of the Deceased in any bank or as to any debts due to the Deceased by any other person.
Application for grant of probate of the Will
This is the formal application for the grant of probate. In it, the applicants are required to state their
names, the particulars of the deceased, value of property left by the deceased, confirm that they are the Executors named in the Will and sign the application. The other forms will also be completed and attached to the application for submission.
Affidavit of Attesting Witness of Will
By sworn affidavit, the Witnesses are to confirm that they were present at the same time when the Will was executed by the Testator in their presence and whereupon they attested the making of the Will by appending their signature in the presence of the Testator.
Oath for Executor
By this, the Executors swear to a declaration that they will faithfully administer the estate by paying all just debts, give effect to legacies and render account of their executorship as required by Law.
Inventory of Personal Property
A declaration and inventory of personal property that the testator possessed or was entitled to at the time of death.
Particulars of Real Property
A declaration and particulars of freehold and leasehold property left by the deceased.
Schedule of debts due by the deceased
Particulars of debts, including name and address of creditors
Schedule of Funeral expenses
Itemised list and total expended
GRANT OF PROBATE
Probate is granted by a Judge in charge known as the Probate Judge.
However, the Judge will not make a grant until all enquiries he considers necessary have been answered to his satisfaction. In his/her enquiry, the Judge may require proof of identity of the deceased or of the Applicants beyond those contained in their oath or enquire as to relation of the applicants to the deceased (Order 57 (5), (8).
Where it appears to the Judge that some other person(s) may have at least an equal right with the Applicant to the grant sought, the Judge may refuse the grant until notice of the application has been given to the other person(s) and that person(s) has had an opportunity to be heard regarding the application (Order 57 (9) ).
Grant to Attorney
An applicant residing outside Lagos is not entitled to a direct grant but may secure a grant through his lawful Attorney who will hold the grant for the applicant’s use and benefit until the applicant is able to obtain a direct grant or in such other way as the Judge may direct (Order 57 (11) ).
Provided that where the applicant is an Executor, Administration shall not be granted to his Attorney without notice to the other Executors, if any.
GLOSSARY OF TERMS AND COMMON EXPRESSIONS
Administrator:
When a person dies without a Will (intestate) then the legal personal representative is referred to as “the Administrator”. This is usually the closest relative although the court will intervene to appoint Administrators where there is disagreement between family members; and so while a probate confirms the representation of an Executor, a letter of administration confers the representation of an Administrator.
Beneficiaries
Named persons to whom Testator has made a gift under his/her Will
Bequeath
To give a gift of property other than land by means of a will.
Devise
To give a gift of real property by means of a will.
Executor
An Executor is a person appointed by a Will to act in respect of the estate of the testator upon his or her death.
Following the death of a testator, an Executor or Executors appointed in the Will become(s) the legal personal representative of the deceased person authorised to act in respect of the deceased’s estate. However, if an Executor does not wish to act, he or she can decline the appointment by completing the relevant form at the probate registry to “renounce probate”.
Upon proof of the will, an Executor or Executors are issued with a Probate letter authorising him or them to administer the estate of a deceased person, resolve all claims and distribute the deceased person’s property in accordance with the will.
Intestate
Not having made a Will before passing on.
Legacy
A Gift by Will; whether of personal or real property.
Testate
Having made a legally valid will before passing on.
Testator
A person who has made a valid Will.
Trustee(s)
In some cases, property may not be gifted directly to beneficiaries but rather retained by the Estate in the name of appointed Trustees. In such a case, legal title is vested in the Trustees who hold the property in trust for the enjoyment of beneficiaries. Thus, Trustees are legal owners, while beneficiaries are the equitable owners.
Residuary Estate (what is left)
The residue or any part of the Testator’s estate that is not specifically given out to someone in the will or any gift that is part of a specific devise or bequeath that fails.
Residuary Clause
This is the clause in the Will that states how the residue of the estate will be held and dealt with.
Inheritance Tax
Tax on the value of inherited assets beyond a certain limit. Beyond such limit, the excess value is what is charged at 10% inheritance tax though after deduction of estate debts (i.e. administration expenses) and funeral expenses.
Letters of Administration
Letters of administration is an official court order appointing someone as the administrator of a deceased person’s estate where no valid Will exists.
Witnesses
Persons who witnessed the signing of the Will by the Testator.
