By Chinemerem Nnawuihe

Definitions

According to the Oxford Advanced Learner’s Dictionary of Current English, Probate means the “official process of proving that a Will is correct“. In other words, a review is carried out in order to ascertain whether a Will is valid or authentic.

Probate also means a legal document which an Executor obtains after a Will has been read and probated. It is a process whereby the Executor(s) to a Testator (that is the person who has written a Will) approach the court to process and obtain a Probate Letter.

A Probate Department is a Registry which deals with probate matters and administration of estates such as Wills, Estates, Probate Oath, Letters of Administration etc.

A Letter of Administration is a legal document obtained from a court by a Next-of-Kin to enable him/her have access to and administer the estate of a deceased.

The Business Of The Probate Department –

Wills

A Testator may go personally to the Probate Department or Registry of a court and deposit his/her Will, which must be properly sealed and waxed (emphasis mine).

Thereafter, the testator must pay a depositing fee and will be given an Acknowledgment Letter which indicates that the court has accepted custody of the Will.

It should be noted that:

  • Court here means the High Court of a state and there are Probate Divisions in the High Court of every state.
  • It is very important to obtain an Acknowledgment Letter once a Will has been deposited in court because it signifies that the court has accepted to take full custody of the Will. Where an Acknowledgment Letter has not been issued or collected, it is assumed that a Will has not been deposited in the court.

A Testator may also deposit his Will through his lawyer. The lawyer will write an application letter to the court using his letterheaded paper, stating his/her intention to deposit a Will in respect of his/her client.

The lawyer while making an application for depositing a Will must disclose the address of his/her place of business in the application.

Where a person dies testate (that is, leaving a Will), the family is expected to go to the court and apply for the Will to be read. The Will is made valid when a Letter of Probate is given.

However, in a situation where members of a decead’s family do not know or are not sure if the deceased deposited his/her Will in the court, they can still go to the court to conduct a search.

The application for search would be written and addressed to the Probate Registrar. Upon approval, the family of the deceased can then carry out a search after paying the necessary statutory fees.

It must be noted that, probate will not be granted until seven (7) days after the death of the testator. The Executors have a minimum of seven (7) days before they can go to the court and apply for the Will to be read and obtain a Letter of Probate.

Letters Of Administration

On the other hand, where a person dies intestate (that is, without leaving a Will), the family must go to the court to obtain a grant of Letters of Administration to enable them administer the estate of the deceased.

The following must be noted:

  • Letters of Administration cannot be obtained anywhere else except in the court.
  • Without obtaining a Letter of Administration, nobody can access a deceased person’s bank account(s), Pension/Death Benefits etc or administer any of his/her estates.

The person who is qualified to obtain Letters of Administration in respect of a deceased person is called the Next-of-Kin. This could be the widow, widower, son, daughter, brother, sister, father, mother, uncle, aunt, nephew, niece etc of a deceased person.

A Letter of Administration gives a Next-of-Kin, the full rights to administer the estate of a deceased person.

Sometimes, the Next-of-Kin is a person nominated by the deceased while alive. In a situation where the deceased did not nominate a Next-of-Kin before his/her death, the family can nominate whoever they deem fit to represent and pursue their cause. However, whoever the family nominates must meet the requirements of the law in obtaining Letters of Administration; that is, the Administration of Estate Laws.

Usually, it is expected that a widow or widower should be the one to process a Letter of Administration in respect of a deceased spouse’s estate. However, where the marriage was not conducted under the Marriage Act, that is, in a Court or Registry then, the widow or widower will have to process the Letters of Administration with one of his/her children thereby making it two Next-of-Kins.

If there are no children in the marriage and the marriage was not conducted under the Act, the deceased’s family can nominate a member of the family to be the second Next-of-Kin.

Generally, the Law provides for a maximum of four (4) Next-of-Kins and a minimum of two (2). The only exception is where the marriage was conducted under the Marriage Act.

If a marriage was conducted under the Act, a widow or widower may be allowed to apply as a sole Next-of-Kin.

Two other circumstances where an individual could be allowed to apply as a sole Next-of-Kin are:

  • If such an individual has been introduced by the deceased person’s office as his/her Next-of-Kin as contained in the deceased’s Record of Service and
  • If such a person can prove to the court that he/she is the only surviving relation of the deceased person.

If a deceased person was not married and had no children, his/her family members can go to the court and process Letters of Administration in respect of the deceased person. However, diligent care must be taken by the deceased’s family members to ascertain if the deceased wrote the name(s) of any of his/her family members as Next-of-Kin either in his/her bank records or employment records.

This is important to avoid any contradictions which could hamper the administration of a deceased’s estate.

Requirements For Obtaining Letters Of Administration

  • Next-of-Kin – A Next-of-Kin has to wait for a minimum of 14 days before going to the court to obtain Letters of Administration.
  • Death Certificate – A Death Certificate from a credible and recognized hospital must be produced for sighting and a photocopy for filing in order to obtain a Letter of Administration.

In most cases, hospitals do not give a Death Certificate in respect of a person who did not die in the hospital; for example, where a person died at home or on the way to the hospital. In such a situation, the family of the deceased would have to go to the court, swear to an affidavit and thereafter, proceed to the National Population Commission (NPC) for registration of death; and obtain a Certificate of Death.

However, in accident cases, a Death Certificate would be given when a Police Report is issued.

  • Sureties – Two credible persons are required to stand as guarantors to the Next-of-Kin.

A surety must have a traceable address and must submit his/her identity card together with a passport photograph(s).

A surety must read through the Justification of Surety Form and understand the terms and conditions contained therein before he/she signs it.

  • Statutory fees – These are fees paid in respect of Letters of Administration and they are paid in a designated bank.
  • Publication – This is a Legal Notice that is being published by the court to inform the general public that, a certain individual has died without leaving a Will; on a certain date; at a certain place; and in view of this, XYZ has come to the court as a relation or Next-of-Kin of the deceased person and has applied to the court for the grant of Letters of Administration in respect of the deceased person’s personal or real property.

The notice would run for a period of 21 days from the date of publication and thereafter Letters of Administration could be granted to the applicant.

  • Estate fees – This is a fee paid in respect of the personal or real property of a deceased person after an evaluation of such property.

Conclusion

The importance of writing a Will cannot be overemphasized. Anytime the subject of Wills is mentioned, it is usually (errernously) associated with preparation for death. Most people, when advised to write a Will see it as a death wish or a death sentence.

Death is inevitable and inescapable for all mortals but we ought to take steps to mitigate the effect(s) of this inevitable event on our family members and dependents by writing a Will.

Writing a Will is no more than an individual setting out his/her wishes and the best possible way to see those wishes actualised after their demise. Simply put, it is putting one’s house in order.

In most cases, writing a Will eliminates rancour, bitter rivalry and endless litigations regarding the estate of a deceased person. Therefore, write your Will today!

Written by Chinemerem Nnawuihe, 0805-296-5646, nnawuiheandassociates@gmail.com

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