CHAPTER ONE

INTRODUCTION TO PROBATE AND ADMINISTRATION OF ESTATES

You should be familiar with the following areas

  • Meaning of Probate
  • Types of Probate
  • Administration of Estates
  • Terms used
  • Laws Applicable

1.1  MEANING OF PROBATE

Are various legal procedure for receiving a WILL distributing it and sometimes paying debts of the deceased as well as conducting his/her burial ceremonies and/ or is the copy of a will: In case of the oral will, a statement of the contents thereof, certified under the seal of the court, with a grant of administration to the estate of the testator.

1.2  TYPES OF PROBATE

1.2.1        Probate with Last Directions (Testate)

This occurs when deceased left a “WILL” in that a person, so long as he alive, is at liberty to deal with his property in any way he wishes or likes. But by making a will he is free to determine a scheme of distribution of his property after his death. The likely questions to arise here are such that:

1.2.2 Probate without Last Directions(Intestate)

If he dies without leaving a “WILL” it’s the object of the applicable law of inheritance to determine the persons who will take his property and such questions may arise, who are the persons entitled to take property if any i.e who are the heir what are the applicable laws but recent literature indicates that the law of instantly succession is the best of the law of inheritance.

1.3  ADMINISTRATION OF ESTATES

Is a management and settlement of estates of an interstate or of a testator who has no executor by a person appointed by the court. Therefore probate and administration is a procedure on how to appoint executor or administrator the estate.

1.4  TERMS USED

Is a situation whereby a deceased dies without making a will. This is per section 33(1) of the Probate and Administration of Estate Act [Cap. 352 R.E 2019]

A person who entitle to inherit property after the death of the intestate is known as heir.

Descendants means the offspring of a person. Immediate descendants of a person are his sons and daughters. The children of sons and daughters and their children and sons are also descendants. One may have descendant though his sons or daughter up to any degree of descent.

Are descendants in parallel lines, from a common ancestor, or ancestress. For example, brother is collateral so is sister.

When person traces his relation with another wholly though males, he or she is on agnates

Whenever in the relationship of a person with another, a female (or more than one female) intervene anywhere in the life one is cognate to another. Example sister’s sons and daughters

When the father and mother of two person are the same, they are related to each other by full blood. Example children of the same parents i.e mother and father

When two persons have the same mother but different fathers.

When persons have the same mother but different fathers.

A person who is born within a lawful wedlock is said to be legitimate but a person born outside the lawful wedlock is said to be illegitimate.

1.5  LAWS APPLICABLE

  1. STATUTORY LAWS
  2. The Judicature and Application of Laws Act [CAP 358 R.E 2019]
  3. The Indian Succession Act, 1865
  4. The Probate and Administration of Estates Act [Cap 352 R.E 2002]
  5. The Administrator General (Powers and Functions) Act [Cap 27 R.E 2002]
  6. The Magistrates Courts Act [Cap.11 R.E 2019]
  7. The Succession (Non Christian Asiatic) Act [Cap28 R.E 2002]
  8. The Law of the Child Act [Cap 13 R.E 2019]
  9. The Civil Procedure Code [Cap. 33 R.E 2019]
  10. The Hindu Wills Act
  11. CUSTOMARY LAW

The Local Customary Law (Declaration Order) (No.4) of 1963

  1. ISLAMIC LAW
  2. The Mohamedian Estate
  3. The Re-statement of Islamic Law GN. 22 of 1967
  4. HINDU LAW
  5. The Hindu Wills Act

The Succession (Non Christian Asian Act) Cap 28 R.E 2002