The administration, practice, and procedure for probate in Nigeria are principally regulated by the Administration of Estate Laws of the various states of the Federation. The provisions and forms for each state are identical to one another.
Other laws that govern probate in various states include the followings:
- The Wills Act, 1837, as amended by the Wills Amendment Act of 1852 and the Wills Law of various States.
- High Court Civil Procedure Rules of Various States e.g. High Court of Lagos State (Civil Procedure Rules) 2019.
The above-mentioned probate laws regulate the administration of the real and personal estate of deceased persons by personal representatives and also provides a legal system of verifying claims of persons claiming to be entitled to the estate of a deceased.
The Grant of Probate is obtained concerning the estate of testate succession, while Letters of Administration is obtained concerning both intestate succession and testate succession. While it is possible to obtain Letters of Administration for testate succession, it is impossible to obtain Grant of Probate for intestate succession. Probate would mean any of the following actions;
- The act of admitting a will for the will to be administered
- The action or step taken towards administering the estate of a deceased person in line with a valid will written.
- Confirmation that indeed the deceased person is dead and taking steps towards administering his or her estate.
The powers and authority of personal representatives (Executors/Administrators) to act and administer the estate of a deceased is derived from a will where the deceased died testate. The Grant of Probate and Letter of Administration validates such powers and authority.
The probate registry has the exclusive jurisdiction to issue and revoke grants of probate and letters of administration of the real and personal estate of a deceased person to his personal representatives and all other ancillary matters that relate to the administration of the estate. The Probate Registry is usually a division of the High Court of most states of the Federation and is subject to the supervision of the High Court of a State.
Functions of the Probate Registry
- The probate registry within the jurisdiction of a testator is a secured place for the custody of wills. Where a will has been prepared by a testator in his hand or by his lawyer, it must be lodged at the probate registry of the High Court upon payment of the prescribed fees. Keeping the will with the testator might be disadvantageous as there is the possibility of will falling into the wrong hands, thus it is better to lodge the will with the probate registry as the safety of the will is guaranteed and the grant of probate is also handled by the same probate registry of the High Court.
Order 62 Rule 2 of the High Court of Lagos State (Civil Procedure Rules) 2019 provides that "an original Will of which probate or administration with Will annexed is granted, shall be filed and kept in the Probate Registry in such manner as to secure its convenient inspection. A copy of every such Will and the probate or administration shall be reserved in the Registry".
When an application to lodge a will is made, the Probate Registrar is required to carry out a physical examination of the will to ensure it is properly sealed and waxed. The lodgement fee is made by the testator or his solicitor and an official receipt or reference number will be issued to that effect. The receipt or reference number will be required upon the death of the testator where the family seeks to retrieve and read the will.
- The probate registry is responsible for issuing a Grant of Probate to a deceased person's executors in a testate administration. Section 20 of the Administration of Estate Law of Lagos State provides that "an application for the grant or revocation of probate or letters of administration may be made through the probate registry of the court".
Order 61 Rule 1 of the High Court of Lagos State (Civil Procedure Rules) 2019 provides that "when any person subject to the jurisdiction of the court dies, all petitions for the Grant of Letters of Administration of the estate of the deceased person, with or without a Will attached, and all applications on matters relating to the administration of the deceased estate shall be made to the Probate Registrar of the court in Probate Form 1 or 2 as applicable".
Upon the death of a testator, the Probate Registry is the first point of call, especially where the will was lodged at the probate registry by the testator. The grant of probate validates and provides the grounds for the enforcement of the content of the will. The process for the application for grant of probate involves the following;
- After the burial of the testator, a search is made to discover if a will was lodged and it proceeds to the reading of the Will.
- Application is then made to the Probate Registrar of the Probate Registry of the High Court of a state, to be accompanied by a copy of the will and the death certificate of the testator.
- Upon submission of the application, forms will be given to the applicant and estate duties (usually 10% of the total value of the testator's assets) will be paid on the deceased estate after the assessment of the estate by the registry.
- The necessary forms or documents that would be needed for grant of probate are as follows:
- Application for grant of probate of the will.
- Declaration on oath by the executors.
- Bank certificate.
- Proof of identity of the applicant.
- Proof of identity of the deceased.
- A duly completed inventory of assets of the deceased.
- Passport photographs of the executors and witnesses to the will.
- The probate registry also plays an important function in intestate administration, as the procedure for grant of probate highlighted above is also applicable to letters of administration. In interstate administration, the deceased died without leaving a will and in that case, the family of the deceased nominates administrators to head the application process for the letters of administration in order of hierarchy. The letters of administration cannot be applied for by just anyone, there is a hierarchy of persons to which the probate law gives consideration, with the surviving spouse and children as the first in line for the order of distribution of a deceased estate.
The application forms for letters of administration are accompanied by the following;
- Application for a Grant of Letters of Administration without Will.
- Oath of Administration without Will.
- Administration Bond by the Applicant.
- Justification for Sureties
- Particulars of Freehold/Leasehold property or assets left by the deceased.
- Affidavit or Declarations as to Next-Of-Kin.
- Schedule of debts owed by the Deceased.
The names and address of the proposed administrators to the estate is usually published to serve as a notice to the general public and interested parties that the administration will be granted to the appointed administrators, except there is an opposition raised.
- The probate registry is also charged with the responsibility of revoking the grants of probate and letters of administration issued to personal representatives upon discovery of certain adverse facts as provided by the probate laws.
- The probate registry also carries out the function of resealing grants of probate or letters of administration obtained outside Nigeria or in another state within the country.
The probate laws regulate how the estate of a deceased will be administered by the personal representatives to ensure that the estate is distributed according to the desires and intent of the deceased, while the probate registry is charged with the responsibility of overseeing all probate and other ancillary matters to ensure justice and fairness in distribution and administration of the deceased. The High Court of a State is responsible for resolving legal matters that may arise from the administration of the estate of a deceased person and the grant of probate or letters of administration in Nigeria.
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.