March 29, 2024
March 29, 2024
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Probate is a court process that verifies the authenticity of a Will and grants authority to the appointed executors to administer the estate of the testator.
The granting of probate is the first step to administering a Will, settling all claims, and distributing the deceased's properties. Even if a person makes a Will before their death, the executors must obtain probate before they can fulfill the instructions in the Will. In other words, the probate empowers the executors to a Will to manage, share, and dispose of the properties of the deceased.
In this legal guide, we will discuss the powers and duties of executors and the procedure for applying for probate.
The executors of the Will or Codicil can apply for probate either in person or through their solicitors.
Executors are legal representatives of the maker of the Will (the testator) who are appointed to administer the testator's estate according to the instructions of the Will. They act on behalf of the testator and their appointment only becomes effective after the testator's demise.
The executor plays a crucial role in ensuring the proper distribution of a testator's assets and the fulfillment of their final wishes. The duties of the executor include applying for probate, overseeing the testator's asset management, debt resolution, and ensuring proper distribution of remaining assets to beneficiaries.
The procedure for obtaining the grant of probate may vary depending on the state the application will be made. The procedure for applying for probate in Lagos state is as follows:
Upon the demise of the testator, the family members or executor of the testator should upon discovery of the Will, apply for the reading of the Will at the high court of the state where the Will is lodged.
The application will include the name of the deceased, date of death, place of death, marital status of the deceased and children of the deceased (if any). The application will be submitted with a copy of the deceased's death certificate.
Upon application, the beneficiaries, executors and interested members of the testator's family will be invited for the reading of the Will. On the date scheduled for the reading of the Will, a designated officer of the court will open the Will in public and the Will be read at the high court in the presence of all interested persons. Certified true copies of the Will will be issued to the family.
After the Will has been read, the executors will apply for the probate.
After an application for probate has been made, the probate registrar will wait for objections or oppositions and where there is none, the probate forms and a bank certificate will be issued.
These forms will be completed and signed by the executors of the Will. The purpose of the bank certificate is to provide all the liquid assets of the deceased including monies in the banks and shares. The bank certificate will be taken to all the banks and registrars of companies where the deceased maintained accounts and the account balance and the shares of the deceased will be entered and endorsed on the bank certificate.
Upon completion, the forms and bank certificate must be submitted to the probate registry along with passport photographs and valid means of identification of all the executors and other documents.
If real property forms part of the deceased's estate, the properties will undergo valuation, meaning that properties will be evaluated to determine their monetary value. Thereafter, the properties will be assessed for the payment of estate duty.
The estate duty is a tax which is calculated as a percentage of the value of the deceased's estate.
After assessment, the executors must proceed to the designated bank and pay the estate duty. Upon payment, a receipt of payment will be issued for submission at the probate registry. The executors must then proceed to the probate registry to verify the receipt.
After the payment has been verified, the executors will proceed to the probate registry for the marking of the Will. At this stage, the executors will sign against their names on the original will pledging to fulfill the instructions in the Will.
After the marking of the Will, the file will be passed for the preparation of the Minutes and Order. Upon approval of the probate judge, the grant of probate will be prepared and sent to the probate registry for approval. The probate registrar will then append their signature to the grant of probate and send it back to the probate registry for sealing. After sealing, the grant of probate will be issued to the applicant and/or the executors.
After the grant of probate is issued, the executors can administer the testator's estate in accordance with the instructions provided in the Will or Codicils. This includes selling or renting the testator's properties, distributing assets to beneficiaries, paying off debts and taxes, and taking other necessary steps to fulfill the wishes of the testator as outlined in their Will or Codicil.
Vivian Umelue is an attorney and legal templates programmer at Wonder.Legal and is based in Nigeria.