The death of an individual often initiates a series of legal processes aimed at managing and distributing their Estate. In law, a person may die testate (leaving a Will) or intestate (without a Will). When a person dies testate or dies leaving a Will, the Testator is required to appoint persons under the Will who will oversee the administration of the Estate. These persons appointed under the Will are called Executors.
An Executor is a person appointed by a Testator (the person making a Will) to carry out the wishes and directions of their Will after death. In Nigeria, the Executor's role is governed by the Wills Act, the Administration of Estates Laws, and the Wills Law of the State in which the Testator was resident. Non-compliance with these statutory provisions may result in personal liability and legal disputes. A Testator is allowed by law to appoint a minimum of two personsi, and there is no maximum number provided by law. It is, however, advisable not to have more than 4 (four) appointed Executors to avoid unnecessary and avoidable complications.
UNDERSTANDING THE ROLE OF AN EXECUTOR
An Executor is a person appointed in a valid Will to administer the Testator's Estate upon their death2. The duties and responsibilities of an Executor legally take effect upon the grant of Letters of Probate by the High Court, and they are expected to manage and distribute the Testator's Estate for the benefit of the beneficiaries of the Estate. This individual or individuals could be a relative, a trusted friend or associate, or a legal professional. What then are the primary duties of an Executor?
- Application for Letters of Probate: Letters of Probate are a legal document that confirms the powers of an Executor to act. Even though an Executor derives his powers from a Will, the Letters of Probate are the document that gives validity to such powers3. One of the Executor's first legal steps is to apply for and obtain this document that gives them/her lawful and official authorization from the Probate Registry to administer the Estate.
- Preservation and Valuation of Estate Assets: The Executor has a duty to identify, locate, and secure all the deceased's assets. These may include, but are not limited to, bank accounts, real Estate properties, shares, personal properties, and digital assets. This prevents loss or misuse before distribution. Accurate valuation of the properties identified and secured is crucial for equitable distribution and tax compliance. Professional valuers may be engaged for this purpose, especially in cases involving real Estate or complex asset portfolios.
- Paying debts and liabilities: Before execution of the Will, it is trite that the Executors must settle all valid debts, taxes (including Estate duty where this is applicable), and funeral expenses4. The Executor is equally responsible for ensuring that any outstanding tax obligations of the Testator are properly addressed. Failure to do so may make the Executor personally liable for unpaid debts if assets are distributed prematurely.
- Distribution of assets according to the Will: After debts and taxes are settled, the Executor must distribute the assets exactly as stipulated under the provisions of the Willv. Any deviation could result in legal challenges or a claim of breach of trust.
- Maintaining records and reporting: Executors must keep detailed records of all transactions (income, disbursements, asset sales, and distributions) involving the Estate. These records may be requested by beneficiaries or the Probate Court. Transparency in all dealings is a legal and moral imperative.
LEGAL GUIDELINES FOR COMPLIANCE
The Executor's authority is not only derived from the Will but is also regulated by a robust legal framework that sets clear expectations for accountability, diligence, and transparency. Compliance with these legal standards is essential to uphold the integrity of the administration process and to shield the Executor from personal liability. These guidelines for compliance are:
- Statutory compliance with Probate procedures: Before performing any act of administration, the Executor must apply for and obtain Letters of Probate, a legal grant from the Probate Registry recognizing their authority.
- Fiduciary duty and duty of care: Executors are legally recognized as fiduciaries6. These impose a high standard of integrity, loyalty, honesty, and impartiality. They are obligated to act solely in the best interest of the Estate and its beneficiaries, avoiding personal gain, favoritism, or negligence.
- Avoiding intermeddling and unauthorized acts: Until the Letters of Probate are granted, the Executor has no legal authority to act. Any pre-probate activity, unless it is urgently needed to preserve the Estate, may be considered intermeddling, which is unlawful.
- Conflict of interest and ethical conduct: Where an Executor has a personal interest in the Estate, they must disclose this and avoid actions that could prejudice beneficiaries.
CONCLUSION
Ultimately, the role of an Executor in Estate management is one of profound trust and legal obligation. In Nigeria's legal landscape, the Executor serves not only as the custodian of a deceased person's final wishes but also as an agent of lawful transition. Every action taken from securing assets to settling debts and distributing the assets must reflect strict compliance with statutory duties, fiduciary principles, and ethical conduct. Failure to adhere to these legal guidelines can result in serious consequences.
Footnotes
1. See section .... of the Administration and Estates Law of Lagos State.........
2. Banks v. Goodfellow (1870) LR 5QB 549
3. Anthony, N.A.M., 2022. ADMINISTRATION OF ESTATES AND PROBATES: A CRITICAL ASSESSMENT. OCHENDO: An African Journal of Innovative Studies, 3(1).
4. Sagay I.E : Nigerian law of succession
5. EXCHANGE, R., EXECUTOR OF WILLS.
6. Ibidapo-Obea (2015) in Essentials of Nigerian Legal Methods
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.
