Probate is required for the administration of the estate of a deceased who died testate. Although an executor derives his powers and authority from a Will, probate is the authority that validates such powers.
Procedure for the grant of probate in Nigeria
Probate is granted upon an application made to the Probate Registrar by an interested person, either personally or through his legal practitioner.
In Nigeria, the Probate Registry, under the supervision of the High Court, has the exclusive jurisdiction to grant probate in respect of a deceased estate.
The procedure for the grant of probate depends on whether the application for probate is contentious or non-contentious.
Procedure for non-contentious grants
The procedure for grant of non-contentious probate is in the following order:
- Search for the Will;
- Discovery of the Will;
- Marking and reading of the Will;
- Making an application for probate;
- Proof of the Will and grant of probate.
Search for the will – Search begins after the burial of the deceased, family members or interested person has to search for the will. Where the Will is the possession or custody of any person, he is to send it to the probate registry within three (3) months of his knowledge of the testator's death.
Discovery of the will - Upon the discovery of the Will of the deceased, whether lodged at the High Court or found in a safe place where it was kept by the deceases before his death, the family members or solicitor will apply to the Probate Registry for the official reading of the Will.
Reading of the Will - The Probate Registrar based on information supplied by the applicant(s) and upon production of an official copy of the death certificate of the deceased shall summon interested persons in the estate of the deceased and when they appear on a fixed date, the Registrar then brings out the Will, breaks the sealed wax on it and reads the Will in the presence of the people present and makes a record of the proceedings, which shall take place at the Will-reading section of the High Court's Probate Registry.
Application for probate - After the reading of the Will, the executors or solicitor can proceed to apply for the grant of probate. In Lagos, the application is by way of a petition, while in Abuja it is by way of a letter, the applicant will also be required to fill and attach the following forms;
Application for grant of probate of the Will,
- Oath for Executor,
- Affidavit of Attesting Witness of Will,
- Inventory of Personal Property,
- Particulars of Real Property,
- Schedule of debts due by the deceased and
- Schedule of Funeral expenses.
After submission of the application, a Bank certificate shall be issued, this bank certificate will be taken to all banks and companies where the deceased owned accounts and shares, where information of such accounts will be filled and endorsed.
Where the deceased owned real property, the Valuation Unit of the Registry will conduct inspection and evaluation of the property(ies), after which an assessment for the payment of estate duty shall be issued. The applicant has to proceed to the bank to make payment and obtain the official receipt and acknowledging payment for submission at the Registry.
Marking of the will - After verification of payment, the file shall be passed for marking of the Will, where the Executors shall attest to do the works as expected by the Will. After marking the will, comes the preparation of the Minutes and Order, which is to be approved by the Probate Judge.
Proof of the Will and Gant of Probate. – Proving goes to the validity of the will, the executor is expected to prove due executed of the will. Where he fails, neglects, or delays in doing so, a notice (Citation) will be served on him directing him to prove the Will or renounce probate. When the probate Registrar is satisfied that the Will was duly executed, that the testator made the Will with knowledge of its contents, and that that due process has been followed, the registrar would then grant probate.
Resealing of Probate
Generally, probate is granted in respect of properties within the jurisdiction of the State where it was granted. Thus, if the executors intend to deal with other properties the deceased had outside that State, they have to apply for the resealing of the probate in the High Court of the State where the property is situated as provided for in section 2 of the Probate Resealing Act.
By virtue of section 1 of the Probate (Resealing) Act, probate granted in any commonwealth country may also be resealed in Nigeria.
Conditions that must be fulfilled before a resealing - By Section 3 of the Probate Resealing Act, one important condition that must be fulfilled before probate would be is the payment of the probate duty (estate duty) In the value to which such estate is liable to probate duty in that state, and
Resealing of probate is regulated by the High Court (Civil Procedure) Rules. Application is to be made to the Probate Registrar where the property is located accompanied by CTC of the first grant of probate, copy of the Will, sworn statement by the applicants and evidence of payment of prescribed fees. The applicant is also required to fulfill the following requirements;
- Application form,
- Oath for resealing,
- Inventory particulars of landed properties of the deceased,
- Bond for resealing,
All the executors must join in the application for resealing, and the application is to be published in a manner prescribed by the judge.
The effect of the resealing of a grant is the probate duly resealed has the force and effect and have the same operation in the state where it was resealed as if it was granted by the High Court of that State.
In Conclusion, is worthy to note, that an application for probate can only be made after seven (7) days in Abuja and fourteen 14 days in Lagos from the date the testator died, however, the application must be made within three (3) months (Lagos) or six (6) months (Abuja) from the death of the deceased as failure to apply for probate within these prescribed periods will result to the executors losing their right to apply except there are special circumstances.
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.