A Will is a vital part of existence in life; usually, everyone with at least a single property should have a Will drafted. A Will is a document made by the property owner stating how his properties should be shared in the event of his demise. The Will speaks for the dead, it is therefore irrelevant until the maker dies.
A property owner, for instance, can use his Will to offer to fund charity or transfer wealth to persons not in his family. Nonetheless, certain events can influence the death of a person without a Will. When a person dies without leaving a Will, such a person has died intestate. Once a person dies intestate, the deceased’s property doesn’t automatically move to the family, rather the deceased property moves to the custody of the Chief Judge of the state where the property is located. Before one can gain access to a deceased estate, one must first be appointed an administrator to the property, this applies even if you are the spouse or child of the deceased.
This article provides insight into the process of acquiring the property of a deceased that died intestate.
Steps to acquire a person’s property that died without a Will (Intestate)
Once a person dies intestate, the application for the letter of administration for the deceased’s property occurs after 14 days from the day the property owner dies.
The law provides that no fewer than two persons but no more than four persons can apply for the letter of administration to be appointed as an administrator of the deceased’s estate. The applicants must be in the order priority specified under the law as follows:
A. The spouse of the deceased;
B. Children or grandchildren of the deceased;
C. The parents of the deceased;
D. Blood siblings of the deceased;
E. Step siblings of the deceased;
F. Grandparents of the deceased;
G. Uncles and Aunties of the deceased;
H. The deceased’s creditors; and
I. The Administrator-General.
The applicant must come in the priority from the list above, for instance, if the spouse refuses to apply or is late, the children are next in line for application, and this continues until it gets to the administrator-General. It is relevant to note that, the applicants must be no fewer than two persons from the list of priority and no more than four.
The first step is to apply through a letter to the probate registry. The application letter will be followed with:
A. The deceased’s marriage certificate;
B. The death certificate;
C. The proposed administrators’ identity cards and passport photographs;
D. A copy of the oath of administration;
E. A copy of the administration bonds;
F. Inventory of the deceased’s assets
G. List of deceased’s debts owed, if any;
H. Schedule of funeral expenses of the deceased;
I. Bank statements showing the balance on the deceased’s account;
J. If the deceased is a pensioner, the certified true copy of the deceased’s service records and the deceased’s retirement letter.
Once the above letter and the documents attached have been submitted, the administrators shall immediately publish in the newspapers a public notice, notifying the general public of the proposed grant of letter of administration and calling for objects by the public.
Where an objection to the grant of a letter of administration is filed by an individual following the publication, such an objection is called a caveat. The caveator (person objecting) is issued a warning by you or your Solicitor, your Solicitor will also issue a writ to the Probate registry for a decision on the caveat. If no caveat comes from the notice after 28 days, you shall write to the probate registry to make a grant on the letters of administration application to the named applicants.
Once the above process is complete, the probate registrar shall apply to the Court through the Chief Judge of the State for a signed letter of administration for the proposed administrators. Once signed, the probate registry shall issue the letter of administration to the applicants. The named administrators have full rights to use, sell, and dispose of the assets of the deceased as they deem fit in the agreement.
Does the above process occur in all cases?
Technically the process enumerated above occurs in some cases. Sometimes, the entire process would be skipped. In Nigeria, there are generally two ways of acquiring the property of the deceased after death intestate. The two broad ways are by customary law or by the provisions of the statute.
Nonetheless, the choice is not to the deceased’s family to choose, it is dependent on the life lived by the deceased while alive. If the deceased lived his life in line with the customary practice of his community, then the customary sharing of the deceased property intestate suffices, if not the provisions of the statute apply.
The law doesn’t define what is meant by customary practice, nonetheless, over the years the Courts have interpreted “customary practice” to mean marrying in line with his custom. This invariably means that if the deceased marries his or her spouse through customary marriage (also Islamic marriage) the rules of the deceased’s custom as to the sharing of property are applied. If the deceased marries in the marriage registry (also in licenced places of worship for marriages) the statutory process is applied.
Nonetheless, the customary practice for the sharing of the deceased’s estate must not be contrary to any law in Nigeria, must not be repugnant to natural justice, equity and a good conscience and must be acceptable to the public. In the famous Nigerian case of Mojekwu v. Mojekwu, a father died intestate and married in line with his customs. The customs of the people was sought to distribute the deceased’s father’s property. The deceased as a woman was denied inheritance of her father’s property by custom. The applicant filed to the court challenging the custom, the courts held that such customs will not suffice because it is repugnant to natural justice, equity and good conscience, is incompatible with the constitution that asserts the equality of all genders and it’s an action that would surely be frowned upon by the public.
The deceased’s property isn’t a right to any person automatically, the application for probate is vital to acquiring ownership of a deceased’s persons property if the deceased died intestate. Nonetheless, it is best practice to leave a Will to avoid the customary or the statutory sharing style for your properties.
Frequently Asked Questions (FAQs)
Such is an offence, even if you are listed among the persons with priority, you could go to jail.
It is advisable to engage a Solicitor for the process, to avoid mistakes.