Guardian

A RIGHTEOUS man leaves inheritance for his off springs says the holy book.  We all must die someday but what live on are our off springs, legacies, assets, liabilities, problems we solved and those we created. The death of a person is not the death of his/her property, assets and liabilities. The death of your loved ones and breadwinners is not a launch into poverty and misery. No one dies with his assets (anything that adds to wealth) and liabilities (anything that reduces wealth) rather such is left for the good of the living. It is the right of the living to take over the ownership and administration of the assets and property even the liability of the dead (deceased). Whether a deceased died leaving a WILL (testate) or without a WILL (intestate) his property must be owned and managed by the living. When a person dies his property devolves on his/her survivors (wife, children, father, mother, brothers, sisters, uncles and nephews) except where there is a written WILL.  The law has provided a yardstick for determining which of the survivors would benefit first and procedures for taking ownership of the property of a deceased. This protects the interest of the survivors from the greedy claws of relatives and gold diggers. This article is to guide you on how to obtain legal right over the property (lands, shares, houses, stores, parks, cars, jewelleries, businesses, machines, insurance, pension/death benefit and money in bank, etc ) of a deceased ( dead parent(s), child, sibling, relatives, friends and debtors etc).  Property of a dead person can only be recovered through obtaining a Grant of Probate or a Letter of Administration or strict adherence to non repugnant customs. This publication is better titled; “A Legal Guide on Probate and Administration of Estates”.  To appreciate this publication, please read my earlier publication tiled; “HOW TO WRITE YOUR WILL”.

Steps to recovering property of the dead.

Even in hell there is order, so is in taking over the property of a dead; there are laid down procedures. In every death, there must be either of these two statuses; the deceased died with a WILL (testate) or without a WILL (intestate). In all cases, there are steps to recovering the property of a dead person. The steps will be treated below under the two different cases; “Where there is a valid WILL” and “Where there is no valid WILL”.

(a). Where there is a valid “will”

We all live to leave great memories and inheritance for our dependants. We somehow control what happens in our lives and not afterwards. One dies either “testate” (with a valid will) or intestate (without a valid will).  A WILL is a record of the intentions of a deceased made by himself before his death effective from his death. It is the wishes/ intentions of a person that will guide the management and administration of his affairs and property after his death. Once there is a WILL the property of the deceased MUST be executed(shared) among the beneficiaries (people mentioned in the WILL to inherit property) as the WILL says. No man, court, lawyer, soldier, police officer, church, pastor, mosque, chief, thief or native custom can change or go contrary to the contents of a valid WILL. It is the last intention of a dead person and MUST be obeyed by all living things!

Note that my adjective “VALID” is not for fancy or show of mastery of diction rather it is refers to the qualities that qualifies a WILL to be respected. Any rubbish written by a dead person can be his WILL if only such rubbish contains certain features/qualities that make a VALID WILL. Some of the features/qualities of a VALID WILL are; a VALID WILL must be made by a SANE PERSON (not by a mentally sick, imbalance, incoherent person), VOLUNTARILY (intentionally, freely, willingly, wilfully, without force, fear, intimidation, enticement, pressure, deceit, forgery, fraud and mistake), signed by the maker in the presence of at least TWO WITNESSES (who need not know the content of the WILL) before the death of such a person. Where any of the above qualities/feature is missing such a WILL is not VALID in the eyes of the law. Such WILL can be challenged by any interested party before a law court; for such a WILL to be declared invalid and the dead person be treated as a one who died without a WILL; what a shame. A Valid WILL will also become INVALID where the maker marries or divorces a spouse after making a VALID WILL or makes another VALID WILL, or destroys, alters, cancels, inserts or defaces his VALID WILL. Under the WILLS Law of Lagos State, any WILL that did not make reasonable financial  provision for Wife/Husband and children can be challenged in court and may be declared INVALID (See, Section 2, WILLS LAW LAGOS STATE Cap. W2 Laws of Lagos State, 2004). Same is applicable in Abia, Oyo and Kaduna States although in such states the list even includes parents and siblings of the deceased (See, Section 4 ABIA STATE WILLS LAW Cap 37, Laws of Abia State 1999).  A WILL made by an under aged person is not VALID. Under the WILLS ACT the legal age for making of WILL is 21 years old although in Lagos, Kaduna, Abia and OYO states among others few states the age is 18 years old. But there is no age limitation/restriction for army officers and even civilian mariners, seamen and air crew in action.

After the death of a person who had written and left a WILL, such a WILL is expected to be found among his belongings or where such a WILL  had been kept by his lawyer, the lawyer must inform the family of the existence of the WILL or where no WILL is found the family may visit the Probate Departments of any of the State High Courts to inquire and carryout a search for a WILL of the deceased.  Where the WILL of a deceased is found by any means, the family is expected to be given a date for the unsealing of the WILL (the sealed WILL will be shown to all present and same will be opened and its content read out before the people present) in a court room or in the lawyer’s office or even in the deceased’s residence.

Often times, makers of WILL appoint legal representatives (executors); being persons that will manage and administer the estate (properties) until such property is given/assented to the beneficiaries of the WILL. Legal representatives carry out the wishes of a dead person as stated in his WILL in trust for the beneficiaries. Where a person has been appointed as an executor, such an executor is expected to apply to the State High Court for a Grant of Probate (Letter Of Execution). Probate is the authority from a State High Court that validates the powers and functions of an executor even though such executor was appointed by a WILL.  Executors can be of any number; there is no limit. That someone was mentioned in a WILL as an executor does not give such a person a right to start managing the deceased’s property without a grant of Probate by the State High Court except in exceptional situations in the interest of the estate.  Steps towards obtaining a grant of Probate cannot be initiated until 7 days after death of a deceased. The procedure for obtaining a grant of probate where a WILL is disputed (contentious) is different from that where the WILL is undisputed (Non contentious); both will be discussed below.

STEP BY STEP GUIDE ON OBTAINING A “PROBATE”

A WILL may be disputed or undisputed, Non-contentious, common OR disputed, contentious, solemn. A WILL is said to be disputed, contentious and solemn when the people concerned in the WILL are contesting the validity of the entire WILL or parts of it. It may be claimed that the WILL was not signed by the purported maker, or was signed by the purported maker under fear, duress, insanity or without witnesses etc.  Often times, an interested person writes and sends a “CAVEAT” (in this context, it is a written notice given to a court or Judge warning it not to admit, hear and accept a particular WILL). Hence, instead of executing such WILL, court will first consider such caveat, contest and verify the protests therein.  After a careful evaluation and assessment of evidence, court may uphold the WILL as valid or invalid. Where a WILL is held by court as VALID, the executors and beneficiaries will go on to obtain grant of probate.

Where court holds that a WILL is invalid, such a valid can never be used by any person.

The property of the deceased will be treated as if there was no WILL at all (died intestate).

SEARCH AND REQUEST FOR “WILL”

Where there is a WILL in custody of a deceased’s lawyer, such a lawyer has a duty to intimate the family of the deceased, fix a date, time and venue to unseal and read out such WILL. Where WILL is in the custody of the Probate Department, of a State High Court, the lawyer is expected to write to the Probate Department, announcing the death of the deceased  and seeking a date, time and venue for the deceased’s WILL to be read out. Death certificate of the deceased must be attached to the letter.

Please note that where a person dies in a hospital doctors issue death certificate but a death certificate for any kind of death at any place can be obtained from the National Population Commission (NPC). NPC has desks and staff in major hospitals across the nation.

PRESENTATION, UNSEALING AND READING OF “WILL”

In an open court by a Probate Registrar or in a law chamber by a lawyer’ on an agreed date and time, the deceased’s WILL will be presented to all persons present to confirm that the WILL is still sealed before it is unsealed, opened and read out to all. WILL will state property(assets and liabilities) given out, people to receive such property, conditions for such property and people to manage same among other instructions.

In some cases, lawyer present, unseal and read out WILLS in deceased’s houses; I detest such practise. It is utterly unprofessional and exposes such a lawyer to unimaginable occupational hazard courtesy of irked beneficiaries.

APPLICATION FOR GRANT OF PROBATE

Firstly, “Probate” is a letter of authority given by a court of law to person(s) mentioned in a WILL to manage the property of the WILL-maker (deceased) for themselves and or for others.

No person whose name is mentioned in a WILL as an executor (managers of the property of a deceased) or a beneficiary (recipients of property in a WILL) can manage or receive such a property from a WILL without applying and receiving a grant of “Probate” from a law court.

Persons named in a WILL as “Executors” are expected to obtain a grant of probate, by making a written application for probate attached with copies of the “WILL”, “death certificate of the deceased”, “Declaration on oath by executors”, “Oath/justification by sureties of the executors”,   “completed bond by the executor(s) to cover the assets and liabilities of the deceased”, “inventory of the deceased’s property (movable and immovable)” and passport photographs of the executors.  Where there is a WILL but no executor was appointed by the maker in the WILL, court will appoint executors; often times court will appoint the beneficiaries as executors to the WILL.

GRANT OF PROBATE

Where the executors have complied with the above requirements, the Probate Registrar will grant probate to the applicants. With the PROBATE, the executors can then administer, manage, share, sell, lease, use, sue and be sued the property of the deceased as if they were the deceased himself; because they have stepped in his shoes. Where executors are different from beneficiaries, such executors upon obtaining a grant of probate are equally empowered to share, devolve, vest, transmit and transfer the property of the deceased to his beneficiaries according to the deceased’s WILL. Please note that, on issues of land in Lagos State and most states of the former Western Region of Nigeria, executors can only transfer/vest the ownership of land of a deceased to his beneficiaries through a document known as “DEED OF ASSENT”.

Any one that tampers with the property of a deceased person without a “Probate” or a “letter of administration” can be sued both in criminal and civil law.

WHERE THERE IS NO VALID “WILL”.

“Many are they that are scared of death hence more are they that depart unprepared” culled from “SMELL OF WISDOM” by –Onyekachi Umah, Esq.

Let me start with you; do you have a “WILL”? Can you write your “WILL” today? Well, I already know your answers! “WILL” writing/making doesn’t indicate or mean an invitation to death rather an expression of love for your possible dependants. WILL is to you dependants what a seat belt is to a driver. A writer once said that after death, one is remembered for either the problems he solved or caused; and I say that as many that will die without WILLS are forever remembered for problems they caused. When you die without a WILL, you have left your lovely family in the hands of your repugnant traditions, jealous siblings, deceitful relatives and unrepentant debtors. Due to poor education and our overwhelming religion many couples are not married under the Marriage Act 1949 of Nigeria rather according to their native customs/tradition/church rites “igba-nkwu”, “ibo-oke” or “Igbeyawo”, “Idana” or “church blessings” which means that upon the death of any of the spouse, traditional laws and church/canonical laws will prevail. Although if no person is claiming rights under the traditional laws the bereaved can approach a court for appointment of administrators under the WILLS ACT of 1837 and that of the different 36 states of Nigeria. Marriage celebrated in a church (with a marriage certificate from a pastor or a priest) but without any Certificate from a Registrar of Marriages (Court) is not a marriage under the ACT but a colourful church ceremony and at best a customary marriage.  It is equal to a traditional marriage. A couple married under the tradition and customs, who does not want to be bound by their draconic native laws and customs on inheritance and succession matters, should make WILLS. Once you make WILLS over property you can give out under WILL, no tradition or custom will affect you and your beneficiaries (family and others). Please note that a couple married under the marriage Act of Nigeria, whether a WILL is made or not must be bound by the provisions of the WILLS ACT; one of the numerous benefits of marriage according to our extant Marriage Act. For more on legal Marriages, see the earlier publication; “HOW LEGAL IS YOUR MARRIAGE?” by Onyekachi Umah, Esq.

When there is no WILL or there is an invalid WILL it will be said that the dead died intestate (without a WILL), the court will on its own determine the persons to be given what from the property of the deceased.  Since the deceased wasn’t smart enough to share his property, our wise courts will help him/her out. Administrators (personal representatives of a deceased) will be empowered by a court through a “LETTER OF ADMINISTRATION” to manage and administer the property of the deceased.

PERSONS ENTITLED TO LETTERS OF ADMINISTRATION

Where a person dies without a WILL, the court will appoint persons to administer the deceased’s property. Court will consider the interest of the persons capable and willing to administer the property. The immediate family (husband/wife and children of the deceased; next-of-kin) is often appointed as administrators of the estate. In practise, most banks in Nigeria will only allow persons mentioned by a deceased in his account opening documents as his next-of-kin to have access to such deceased’s bank account. Also, note that many pension administrators and insurance companies will only honour the persons whose names were used as next-of-kin by a deceased in his dealing with them. Hence be mindful of persons you appoint as your next-of-kin and never hesitate to change such persons when the going gets tough. The court will consider the age and sanity of persons seeking for appointment as administrators. Below is a list of persons that can be appointed as administrators of estate according to their order of priority and suitability:

Husband or wife of deceased

Children of the deceased or grand children of deceased whose parent died during the life time of the deceased.

Father or mother of the deceased. Brothers or sisters of the deceased of full blood and the children of such brothers or sisters who died during the lifetime of the deceased.

Brothers or sisters of half blood of the deceased or the children of any such half brother or sister who died during the lifetime of the deceased.

Grandfather or grandmother of the deceased.

Uncles and aunts of full blood or their children Creditors of the deceased. Administrator-General

The above list is arranged according to order of priority; meaning that a father/mother cannot be appointed where there are capable and willing children and children will not be appointed where there are a willing and capable husband/wife. Court will not appoint a person less than 18 years unless there are two (2) other administrators with such a person.

STEP BY STEP GUIDE ON OBTAINING “LETTER OF ADMINISTRATION”

Where there is no WILL no one can manage or administer the property of a dead person without a letter of administration from a court, except where the deceased was never married under the Marriage Act. Above are the persons that can be issued such letter. Below is the step to step guide on how to obtain such letter of appointment. Please note that, such letter cannot be applied for until after 14 days from the date of death of the deceased.

APPLICATION FOR LETTER OF ADMINISTRATION

Fourteen (14) days after the death of a person his dependents may apply for grant of letters of administration to enable them manage the deceased’s property. Such persons are  to make an application in writing, and attach copies of the “death certificate of the deceased”, “Declaration on oath by executors”, “Oath/justification by sureties of the executors”,   “completed administrative bond to cover the assets and liabilities of the deceased”, “inventory of the deceased’s property (movable and immovable)”, passport photographs of the prospective administrators and their two (2) sureties.

PUBLICATION OF APPLICATION IN NEWSPAPER.

Unlike in application for a “Probate”, in application for a Letter of Administration the applicants must make a publication of their application in a newspaper that circulates in the area. The publication is to inform the public of the names of the applicants, the estate of the deceased and the period of time within which the public can protest against such application. This practise prevents fraud and helps inform the public of the dealings in the estate of a deceased. Any member of the public can protest and enter an objection within eight (8) days after a publication is made. Where an objection is received the court will determine such and consequently grant or refuse to grant a Letter of Administration.

GRANT OF LETTER OF ADMINISTRATION

Where there was no objection to an application for letters of administration or an objection was decided in favour of the applicants, the court will grant a letter of administration to the applicants. With a letter of administration, the administrators often the family members of the deceased can manage, use, sell, sue or be sued over the property of the deceased. Hence, property and ownership has been vested on them and the property of the dead recovered from all possible trespassers.

With any of the above documents from a court; a “Letter of Administration” (for where there is no WILL) or a “Probate” (where there is a WILL), the holders of such are automatically vested with the rights over the property of a deceased. Property of the dead can no longer be said to belong to no one or be used by any person other than the certified personal representatives (administrators and executors). Any person that deals with property of the dead without such documents can be dealt with both in civil and criminal law. Get a probate or a letter of administration toady, and recover the property of you dead loved ones.