DIFFERENCE BETWEEN TESTATE AND INTESTATE SUCCESSION.
The process of disposal of a deceased’s property when there is a valid will is known as testate succession. In testate succession, the terms ‘probate’ refers to the court process through which a will is proved to be genuine and by which the executors are authorized to dispose off the estate of the deceased.
The person making the will is called the testator if male and the testatrix if female and the instrument called a will is referred to as a testament also. The administrator appointed under the terms of the will is referred to as the executor as he executes the wishes of the deceased as set out in the will.
In testate succession, the executor derives his authority from the will. The Grant of Probate is not the source of the executor’s authority and the probate process merely confers or authenticates the authority of the executor, the probate process is merely procedural. Executors can take up their responsibilities immediately after the death of the deceased. This confers a great advantage since where a deceased person leaves no valid will, the administrator cannot act till he acquires a Grant of Letters of Administration which process takes about two months.
Intestacy on the other hand refers to a situation of dying without having made a will or having made a will that is subsequently rendered void or invalid. Intestacy leads to intestate succession and the rules of intestacy are intended to determine the relatives of the deceased who are entitled to inherit his property. Here only blood relatives inherit apart from the spouse. The person who dies intestate is known as an intestate. An administrator is a person appointed by the court in intestacy or in a will to manage the estate of a deceased person. The administrator is said to represent the deceased. The assets of the deceased vest in the administrator. He acquires legal title to the property and can do anything the deceased would have done e.g. sue, mortgage, sell, etc. The person who represents the deceased and acts as the administrator is also referred to as the personal representative of the deceased. However, the term administrator is usually confined to the person appointed in the event of intestacy.
Under intestacy, the Grant of letters of administration also referred to as a Grant of Representation or simply, Letters of Administration is the source of the administrator’s authority. The “administrator” is appointed by the grant issued by the court to act as the personal representative of the deceased. The Grant takes the form of an order that a particular person is to act as the personal representative of the dead person. A personal representation thus derives the power to administer an estate from the grant itself, without which there would be no power for him to represent the deceased.
WRITTEN BY: CHAMAN LAW FIRM TEAM
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