WHAT ARE THE DIFFERENCES BETWEEN AN ADMINISTRATION OF ESTATE AND GRANT OF PROBATE IN NIGERIA

WHAT ARE THE DIFFERENCES BETWEEN AN ADMINISTRATION OF ESTATE AND GRANT OF PROBATE IN NIGERIA

What is a Grant of Probate?

When a person makes a Will, they need to appoint at least one Executor. Real consideration should be given to the person appointed as Executor since it carries a high level of responsibility.

The Executor has the power to dispose of assets, transfer funds to beneficiaries named in the Will and carry out essential tasks required to administer the estate. Therefore, it is imperative that the person chosen is reliable, trustworthy and capable of dealing with complex administrative processes.

Even though the power to administer the estate is derived from the Will and the appointment takes effect immediately on death, being a named Executor is sometimes not enough. Most financial institutions will not automatically allow the Executor of a Will access to financial accounts without having obtained a Grant of Probate first. Different banks will have different thresholds and requirements for releasing funds. The Grant of Probate is essentially a legal confirmation that the Will is valid and has been officially registered by the Court.

Once a Grant of Probate has been issued, it specifically names the people who are responsible for the administration of the Estate. Financial institutions need this information to be sure they only transfer funds to the people authorised to manage the Estate. This process has been put into place to protect both financial institutions and relatives from becoming victims of fraud.

Probate is obtained in the case of testate succession, while letters of administration is obtained with respect to intestate succession and testate succession in some instances. While it is possible to obtain letters of administration for testate succession, it is impossible to obtain probate for intestate succession.

Even though an executor derives his powers and authority from a Will, probate is the authority that validates such powers. Thus probate confirms the power of the executor to act. The administrator derives his power from the letter of administration. For the purpose of emphasis, both executors and administrators are regarded as personal representatives of a deceased. An executor is appointed by the deceased in his Will while the administrator is appointed by the court in line with the provisions of the law. Thus, while probate confirms the authority of an executor, a letter of administration confers the authority of an administrator.

What is a Letter of Administration?

Letters of Administration are usually issued to the persons entitled under the rules of intestacy (or their guardians if they are minors) where the deceased without a Will.

What does Letters of Administration mean? It is essentially a grant of administration by the court allowing a named individual to administer the estate.

Why is this necessary? If the deceased died without making a Will, it means that no specific person has been appointed to manage the estate. In such cases, the court does not automatically assign authority to manage the deceased person's affairs. It is up to family members to apply to the Court for Letters of Administration which gives them the legal right to close bank accounts and transfer funds etc. and therefore unlike an Executor, the Administrator does not have any legal authority until Letters of Administration has been granted.

This sounds simple in principle but in practice, it can cause problems. Particularly if family members cannot agree who is the best person to manage the Estate. In such cases, it is common for the Court to get involved to resolve disputes. This is not only time consuming but will result in extensive costs being incurred. It is for this reason that it is always beneficial to make a Will.

APPLICABLE LAWS GRANT OF PROBATE AND LETTERS OF ADMINISTRATION IN NIGERIA

a) Administration of Estate Laws of various states of the federation

b) Wills Act, 1837, as amended by the Wills (Amendment) Act of 1852

c) Wills Laws of the various states

d) Rules of court, such as the High Court of Lagos State (Civil Procedure) Rules 2012.

e) Marriage Act

f) Case Law/Judicial precedent

g) RPC

h) LPA

i) CFRN 1999, as amended.

1) Evidence Act 2011

WRITTEN BY: CHAMAN LAW FIRM TEAM

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