This is a guide on how to claim the money in the bank as well as the movable and immovable assets of a deceased person who died testate (i.e. leaving a valid Last Will).
What You Should Note
When a testator (maker of a Will) dies, his entire estate is automatically vested in the Chief Judge of the State. Until probate is granted by the Probate Court, the executors (persons appointed by the testator to carry out his instructions as contained in the Will) cannot interfere with the estate of the testator, otherwise, they may face civil and criminal liabilities. Probate is the process of obtaining a legal document called Grant of Probate to administer the estate of a person who died leaving a Last Will lodged at the Probate Registry. Where the deceased appointed you as his Executor in his Last Will, you should seek to obtain a Grant of Probate.
When Can You Be Granted Probate?
Grant of Probate may be issued after seven days of the death of the testator.
Who Is Entitled to Grant of Probate over the Testators Estate?
The following is the order of priority of right to grant of probate in testate succession (i.e. where testator Will is annexed):
- The executor;
- Any residuary legatee holding in trust for any other person (that is, where the residuary estate is subject to a trust);
- Any residuary legatee or devisee for life;
- The ultimate residuary legatee or devisee, including one entitled on the happening of any contingency;
- Any specific legatee or devisee or creditor or their personal representative;
- Any specific legatee or devisee entitled on the happening of any contingency, or next-of-kin.
How Is Probate Granted?
When the testator dies, and his Will is discovered at the Probate Registry, you need to consult a Solicitor who will make a formal application to notify the Probate Registrar of the discovery of the Will. A date will be fixed for the reading of the Will. Thereafter, the Solicitor will make a fresh application either by Common Form or Solemn Form for the grant of Probate on your behalf.
When Should Application Be Brought by Common Form?
Application may be brought by Common Form in non-contentious cases where no caveat is likely to be entered by any interested party to protest the granting of probate to you or the other applicants. This indicates that all parties are satisfied that the Will is a true reflection of the wishes of the testator. Relevant documents will be filed at the registry. The payment of the prescribed fees will be made after an assessment of the estate conducted by the Probate Registrar and the executors. Upon satisfaction with the requirements, the Probate Registrar shall grant probate to the executor(s) with the Will attached to the probate.
When Should Application Be Brought by Solemn Form?
Application may be brought by Solemn Form in contentious cases where a caveat has been entered by an interested party (Caveator) to protest or oppose the granting of probate to you or the executor(s) named in the Will. This indicates that there is dispute regarding what document(s) should be admitted to probate; or dispute as to who is entitled take out a grant of probate; or dispute as to whether a grant should be revoked. Your Solicitor shall issue a Warning to the Caveator(s) and a writ for the Probate Court to determine the merit or otherwise of the caveat for the purpose of granting or refusing the Grant of Probate.
What Documents May be Required for the Grant of Probate?
You will have to give details of the identity of the testator by stating his name, date of birth, address, profession, marital status, names of spouse and children; the date and place of the death of the testator; name of executors, if any, in the Will. You will present the originals of the following documents to your Solicitor:
- Death Certificate of the testator
- Passport photographs and valid means of identification of the applicants and witnesses to the Will.
Your Solicitor will procure the following documents and file same at the Probate Registry:
- Application Letter
- Oath of Administration by Executors
- Administration Bonds
- Statutory Affidavit of the attesting witnesses of the Will
- Inventory of moveable and immovable assets of the testator
- Schedule of Debts owed by the deceased
- Oath or Justification of sureties
- Particulars of freehold/leasehold property left by the testator.
- Schedule of Funeral Expenses of the deceased
- Bank or Share Certificate (showing the balances of the deceased's bank account(s) or company shareholding, respectively).
Upon compliance with the conditions precedent for the grant of probate; dismissal of the caveat (if any) and the payment of the prescribed fees, the Probate Registrar shall grant probate to the applicant.
WHAT TO DO NEXT?
Grant of Probate confirms your authority as the executor or co-executor of the testator's estate. Thus, even where you are one of the named executors in the testator's will, it is not automatic for you and the co-executors to tamper with the estate of the deceased in any manner. It is illegal to do so and you may be liable for prosecution for both civil and criminal charges. No part of the estate should be tampered with or distributed until the Grant of Probate is issued through an Order of the Chief Judge of the State who is the head of the Probate Court.
Obtaining the Grant of Probate is, however, a very rigorous process, fraught with procedural and technical complexities. It is important you seek legal guidance and help from a Solicitor who will assist you to apply and obtain probate with ease, devoid of the problems and frustration associated with that process.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.