May 9, 2018

Administration Of Estate: Effect Of An Intestate Property | Esse Palmer

The issue of administration of an estate is usually post-mortem. That is why many property owners with dependents and all adults in general are encouraged to write a Will while they are still alive. However, despite the push for more Will drafting, many still hold reservations to the act.

The factors responsible for this skepticism may include:

1.     Religious doctrine

2.     Procrastination

3.     Ignorance

4.     Morbid fear

It must be appreciated that when a person leaves a will, he or she makes it easier for the beneficiaries to receive, with zero stress, the intended gift of the testator. Also, the court house is spared from all the battles on who has the most legitimate claim to the property. The benefits of writing a Will are undoubtedly considerable, as opposed to not writing.

But what then is the effect of leaving a property without a will? In such cases there may be frequent visits to the court house, abuse of property by family members, unfair dominance of certain persons over others, bad blood between family members, unnecessary interference by outsiders over private family affairs, and the list goes on.

Fortunately, many states in Nigeria have promulgated or adopted modern laws on the Administration of estates which enables the court to interpret the stance of the law on how the estates should be administered in the absence of a will.

The Lagos Administration of Estate Law would be relied on for the purpose of this article.

The Administration of Estate Law of Lagos State 2004 in section 2 defines an intestate person as one who dies without making a will and this includes a person who dies intestate as to some beneficial interest in his real or personal estate not contained in the will. In other words, an estate or property not included in a will, whether by omission or intentionally, would deem the deceased owner intestate as it concerns that particular property. 

When a person dies testate, personal representatives of the deceased are easily identifiable; this is a direct contrast with a case of intestacy where the personal representatives are appointed by the court in accordance with the law. Those who consider themselves to be personal representatives of the deceased are mandated to apply for Letters of Administration.

Who is can be a personal representative in the case of intestacy?

Under Section 49 AEL persons who are entitled to grant of letters of administration in order of priority include:

1.     Surviving Spouse

2.     Children of the Deceased or the issues of the children of the deceased (who died before the deceased)

3.     Parents of the deceased

4.     Brothers and sisters of the deceased of full blood and their surviving children

5.     Brothers and Sisters of the deceased of half-blood and their surviving children that are sui juris

6.     Grandparents of the deceased

7.     Uncles and Aunties of whole blood or their surviving children

8.     Creditors of the intestate estate

Any of these persons approved by the government shall be deemed “Administrator of Estate”

It is important to note that under Section 49 AEL, every application for letters of administration is usually published in a gazette, to enable any other person interested enter the appropriate caveat. Consequently, letter of administration shall not be granted until a specified period of time (usually determined by relevant law or rules of court in the state of application) has elapsed and where there is a caveat, shall not be granted during the period of such caveat unless the caveator refuses or neglects to respond to citation.

Essay Palmer

Legal Practitioner

Adedunmade Onibokun & Co.