Before anyone can be legally authorized to administer the estate of the deceased, he must have been granted either PROBATE or LETTERS OF ADMINISTRATION.
8.1. TYPES OF GRANT
There are 3 types of grant that can be made at probate:
1. Grant of probate
This is where the deceased dies testate, leaving a valid will with executors appointed in the will.
2. Grant of Administration with the will attached
Here, the deceased left a will but either did not appoint executors or those he appointed have renounced probate or are minors.
3. A grant of simple administration
This is where the deceased died intestate either wholly or partly. Where he dies partially testate, the part of his estate not covered in will would be administered by the grant of simple administration.
8.2. WHO IS ENTITLED TO A GRANT OF PROBATE?
Where the deceased left a valid will, the executor is entitled to apply for probate.
8.3 PROCEDURE FOR GRANT OF PROBATE
The procedure for grant of probate would depend upon whether it is a non-contentious grant or a contentious grant.
8.3.1. PROCEDURE IN NON-CONTENTIOUS GRANT
1. Discovery of and reading of the will
The will has to be located and read. This is the ‘discovery’ stage. A search could be conducted at the Probate Registry to ascertain if a will was lodged there. If the will is found in the Probate Registry, it would be read at a designated time as determined by the Probate Registrar.
If the will is in the custody of the solicitor to the testator, he could summon all members of the deceased family for the purpose of opening and reading the will.
Where the will is in the possession of any person, such person must deliver it to the Probate Registrar.
Where the Will cannot be found but there is reasonable ground to believe that a person has knowledge of its whereabouts or existence, the court may summarily order that such a person be examined and after such examination that he produces the document and bring it to court.
Not only the will must be produced; all documents referred to in the will as constituting testamentary documents must also be produced.
After the will and support documents have been found (and possibly read), an application, addressed to the Probate Registrar, would be made for probate.
2. Proof of Will
The executor will be required to prove the will after which a citation will be issued whether or not the executor has intermeddled with properties constituting the estate of the deceased.
8.3.2. PROCEDURE IN CONTENTIOUS GRANT
Where an application for grant of probate is contested, a caveat could be filed. The Probate Registrar would refer the proof of the will to court. To ensure no probate is sealed in error, the Registrar shall maintain an index of caveats. At the conclusion of the probate action, the Probate Registrar may or may not grant probate depending on the outcome. Pending conclusion of the dispute on the will, the court may grant a temporary administration pendent lite to preserve the estate.
8.4. PROCEDURE FOR GRANT OF LETTERS OF ADMINISTRATION
Letter of administration are usually granted upon an application by a person entitled. There are 7 forms to be completed after which a public notice of the application is made. This is to enable any other interested person enter the appropriate caveat Depending on the applicable rule of court, a grant of administration will not be made within a minimum stipulated period of time of the death of the intestate.
7. Gains from chattels sold not exceeding N I000.
8. Allowance shall be made for funeral expenses. (Kindly confirm that these two lines are part of this content; they seem off).
8.5 ADMINISTRATION OF SMALL ESTATES
In Lagos State, there is a separate regime of law for small estates or estate of the poor. The applicable law, Administration of Estates (Small Estate Payments Exemption) Law 2005 recognizes that the poor cannot cope with the delay and cost characterized by the general law of intestacy. It separates small estates from others.
A ‘small estate’ is one with a value of N100,000 or less and such estates are excluded from the regular process of Letters of Administration. Applicants under this regime do not have to pay estate duty. Also, they are not levied for public notice or publication. In addition, widows are included as administrators. This Law, which was initiated by Human Development Initiatives (HDI), is salutary and hopefully will be replicated in other states of the Federation in the interest of the poor.
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