After Obtaining a Grant of Probate or Letters of Administration, What Comes Next? – Tola Ayanru

Real Estate and Succession

6th April 2020.

 

Tola Ayanru[1]

AFTER OBTAINING A GRANT OF PROBATE OR LETTERS OF ADMINISTRATION, WHAT COMES NEXT?

 

Introduction

The Interpretation Section, Part 1 of the Administration of Estates Act of Lagos State defines Administration with reference to the real and personal estate of a deceased, letters of administration, whether general or limited or with Will annexed or otherwise.

If the deceased has a will, the executor or administrator will apply for a Grant of Probate. The grant is a legal document which confirms that the executor has the authority to deal with the deceased person’s assets (property, money and belongings). This is called ‘administering the estate’. The Executor uses the grant to show they have the right to access funds, sort out finances, and collect and share out the deceased person’s assets as set out in the will.

If the deceased died intestate, a close relative of the deceased can apply to the probate registry to deal with the estate. In this case they apply for Letters of Administration. Like the grant of probate, the letters of administration is a legal document which confirms the administrator’s authority to deal with the deceased person’s assets.

Testate Administration

There are two procedures for the grant of probate of a Will. Probate may be granted either in common form or in solemn form. An application for the grant of probate in common form is usually made ex-parte.[2] The procedure is carried out by the Probate Registrar of the High Court upon an application by the Executor(s). It involves establishing that it was in fact the Testator (the maker of the Will) who died; that the Will was properly signed and attested and the Executors have been appointed. The procedure is usually employed where there is no one challenging the Will. Once the requirements have been fulfilled and there is no opposition to the grant, the propounder of the Will would have made out a prima facie case of entitlement to the grant.

On the other hand, where the Will is contested, it would involve a hearing at the High Court. The executors must apply in solemn form which means pleadings are filed under the standard procedure for civil proceedings in the High Court. The party who is contesting the Will is named as a defendant. He would then have the opportunity of filing a statement of defence and/or a counter claim if he so desires. In a situation where the executors are applying for the grant of probate in solemn form it is not in doubt that they are propounding the Will and must begin by leading evidence to show, prima facie, that the testator had the necessary testamentary capacity to make the Will and that there was due execution.[3]

Intestate Administration

The procedure outlined above also applies to intestate administration. However, the difference with intestate administration is that the deceased person did not write a Will to guide the administration of his/her estate. Under such circumstances, the family reaches an agreement on whom the personal representatives/administrators of the estate should be and the nominated administrators take on the role of the executors of the estate by applying for the letters of administration which play the same role as a grant of probate.

Under an application for letters of administration, there is a procedure for the publication of the estate where the details of the Estate such as the names and addresses of the proposed administrators to the estate are published against the name of the deceased person. It serves as a notice to all interested parties that the administration of the estate will be granted to the appointed administrators in the absence of any opposition.

Duties of Personal Representatives

It is important to know what is required of individuals once they have been legally conferred with the role of Administrators or Executors. They are required to carry out the basic duties listed below:

  1. Gather all the assets of the Estate and settle the liabilities of the Estate.
  2. Distribute the remainder of the Estate, after the settlement of all debts and liabilities to the proper beneficiaries appointed by the Will or appointed by law.
  3. Keep proper accounts of the Estate.

“Every person to whom a grant of Probate or Letters of Administration shall have been made and every administrator appointed by the Court shall file in Court the accounts of his administration every 12 months from the date of the grant or the appointment until the completion of the administration.[4] Any such Executor or Administrator who fails within the prescribed period to file his accounts as aforesaid shall be liable to a penalty of N100,000 for every year of default.”[5]

4. Vest the beneficiaries with proper title to the assets by way of vesting deed or assent by the operation of Law, the real estate of a deceased Testator vests in the beneficiaries of the estate when the personal representatives of the deceased assent in writing to the vesting of the estate in the beneficiary. In other words, the real estate of the deceased vests in the beneficiary only when an assent is made by an Executor in relation to the estate. Thus, a beneficiary cannot claim his share in the estate of the deceased Testator until the Executors have given their assent to the vesting of the property in him.[6] In addition, the Registration of Titles Law of Lagos State[7] provides as follows:

“If the deceased was entitled to the Land or charge or tenancy in common therein for his own benefit, his legal personal representative shall be entitled to be registered as owner or tenant in common as the case may be.

What comes after the Executors/Administrators have completed their task of administering the Estate?

It is only when the Executors have completed their work that they shall be “discharged”. On what constitutes a “discharge”[8], the United Kingdom Administration of Estates (Small Payments) Act 1965, states as follows:

“An Executor may make an application to the Master to be discharged from his duties as appointed Executor upon the completion of the liquidation and distribution of the deceased’s Estate to the satisfaction of the Master subject to section 17 of the Estate Duty Act, 45 of 1955”.

In addition, it is stated that the discharge is in form of an affidavit, which must be lodged by the Applicant/Executor or the Solicitor with the relevant Master overseeing the Administration of the estate. The affidavit must be deposed to by the Executor, be accompanied by the original Letters of Executorship/Probate and contain the following information:

  • Confirmation that all estate liabilities have been discharged;
  • Confirmation that all assets have been transferred to the rightful heirs or legatees;
  • Confirmation that the estate duty, if any, has been paid;
  • Confirmation that any amounts due as capital gains taxes have been paid;
  • Confirmation that the Executor has completed all his duties as set out in the Will/Act;
  • Confirmation that the Master has been requested to reduce the bond to nil;
  • Confirmation that all records of the estate will be kept for 2 years as set out in section 56(3) of the Act; and
  • Confirmation that the Executor is aware that the discharge does not exempt him from liability in respect of any fraudulent dealings as set out above.

Consequently, after the vesting of property rights on individual beneficiaries by the Executors or Administrators of the estate of the deceased and the estate account shows a nil return, the Executors or Administrators can then be discharged of their duties and the Executors or Administrators will be issued Certificate of Discharge.

a. In addition, upon filing an administration account which is deemed to be full and proper as well as a Vesting Assent, the Executors or Administrators who have nothing more to administer in respect of a deceased’s estate, are said to be discharged of their duties and in some jurisdictions such as Edo State, they are issued a Certificate of Discharge by the Registrar. This means the completion of administration of such deceased’s estate and the estate matter will be regarded as closed and the Executors will be relieved of all responsibilities to administer the Estate.

b. What this discharge means and the consequence of such discharge is also explained in Section 56 (2) as follows:

“If discharge has been given by the Master, no person shall institute any legal proceedings against the discharged Executor in respect of any claim against the deceased’s estate or any benefit out of that estate…”

On the other hand, there is also authority to show that where an Executor is functus officio, that is, after clearing the estate by payment of debts, funeral and testamentary expenses and there being no legacies in the ordinary sense, he has done his duty and he becomes clothed with the character of a trustee.[9]

Similarly, an administrator who has paid all expenses and debts and cleared the intestate’s estate stands in the same position towards the next of kin as that in which an executor who has cleared the estate stands towards the residuary legatees. He ceases to be an administrator and becomes a trustee.[10]

Conclusion

Administration of a deceased person’s Estate focuses on the need to be accountable. A personal representative standing in a fiduciary position unless expressly authorised to do so, is not allowed to make a profit by the trust either directly or indirectly.[11] He is accountable for any profit made from the constituted trust.[12] He must not in any way make use of the estate property or of his position for his own interest or private advantage. He may not buy the estate property from himself or for himself or his co-administrator/executor. He cannot occupy the two positions of vendor and purchaser at the same time. Any such purchase is voidable at the instance of any beneficiary, however fair the transaction may be and however, full a disclosure of all material facts may have been made to the beneficiaries especially where the price is considered to be below market value.[13]         

Accountability is an equitable rule, which has always been guarded and enforced and encourages all personal representatives to refrain from conduct incompatible with good faith and prevent them from purposefully occupying a position where personal interests may conflict with their duties to the Estate.

 

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For further information on this article and area of law, please contact Tola Ayanru at:

S. P. A. Ajibade & Co., Lagos by telephone (+234 1 460 5091, 460 5092)

Mobile (+234.802.561.0311; +234.807.819.1720) or

Email (aayanru@spaajibade.com).

www.spaajibade.com

[1]       Adetola Ayanru, Senior Associate, Real Estate and Succession Department, S. P. A. Ajibade & Co.

[2]     Without notice to the world, unlike applications for letters of administration.

[4]     High Court of Lagos Civil Procedure Rules 2019 -Order 61, Rule 16 (1).

[5]     High Court of Lagos Civil Procedure Rules 2019- Order 61 Rule 16 (2).

[6]          Unoka v Agili (2007) 11 NWLR (PT 1044) p. 122.

[7]     Section 37 (2a) Registration of Titles Law of Lagos State (2003 CAP R4).

[8]     Section 56(1) of the United Kingdom Administration of Estates (Small Payments) Act 66 of 1965.

[9]     Re: Peter Timmis: Nixon v Smith (1902) 1 Ch 176.

[10]        Ponder v Ponder (1921) 2 Ch.59.

[11]        Marques v Edamatie (1950) 19 NLR 75 at 77.

[12]    Regal Ltd v Gulliver (1942) 1All ER. 378 at 391.

[13]    Wrigth v Morgan (1926) A.C. 788.

 

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