STEPS TO RECOVERING PROPERTY OF THE DEAD: TESTACY
Where a person dies, what are the ways by which the property of the deceased can be recovered where there is a will and where there is no will?
In taking over the property of a dead; there are laid down procedures. In every death, there must be either of these two; a deceased who died with a WILL (testate) or a deceased who died without a WILL (intestate).
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 a deceased must be executed among the beneficiaries that is, people mentioned in the WILL to inherit property, as the Will says.
No man, court, government, lawyer, soldier, police officer, clergy, chief, thief, elders 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 it must be obeyed.
Anything written by a dead person cannot be taken as his Will; it would be regarded as a Will if and only if such thing 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, willfully, 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 would be invalid in the eyes of law and it can be challenged by any interested party before a law court.
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 Probate Departments of any of the State High Courts to inquire and carryout a search for a WILL of a 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. On an agreed day, a 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 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 a 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 a State High Court except in exceptional situations in the interest of the estate. It is essential you not that Steps towards obtaining a grant of Probate cannot be initiated until 7 days after death of a deceased.
WRITTEN BY: CHAMAN LAW FIRM TEAM
TEL: 08065553671, 08024230080