B. WHERE THERE IS NO VALID “WILL”.
“Many are they that are scared of death hence more are they that depart unprepared” culled from “SMELL OF WISDOM” by –Onyekachi Umah,Esq.
Let me start with you; do you have a “WILL”? Are you ready to make your “WILL” today? Well, I already know your answers! “WILL” writing/making doesn’t indicate or mean an invitation to death rather an expression of love for your possible dependants. WILL is to your dependants what a seat belt is to a driver. A writer once said that after death, one is remembered for either the problems he solved or caused; and I say that as many that will die without WILLS are forever remembered for problems they caused. When you die without a WILL, you have left your lovely family in the hands of your our often repugnant traditions, jealous siblings, deceitful relatives and unrepentant debtors. Due to poor education and our overwhelming religion, many couples are not married under the Marriage Act 1949 of Nigeria rather are married according to their native customs/tradition; “igba-nkwu”, “ibo-oke” or “Igbeyawo”, “Idana” or “church blessings”. This means that upon the death of any of the spouse without a VALID WILL, native/traditional laws and church/canonical laws will prevail instead of our modern and equitable WILLS laws. Although if no person is claiming rights under the traditional laws the bereaved can approach a court for appointment of administrators under the WILLS ACT of 1837 and that of the different 36 states of Nigeria. Marriage celebrated in a church (with a marriage certificate from a pastor or a priest) but without any Certificate from a Registrar of Marriages (Marriage Registry) is not a marriage under the ACT but a colourful church ceremony and at best a customary marriage. It is equal to a traditional marriage. A couple married under the tradition and customs, who does not want to be bound by their often draconic native laws and customs on inheritance and succession matters, should make WILLS. Once you make a WILL over a property that you can give out under a WILL, no tradition or custom will affect you and your beneficiaries (family and others). Please note that a couple married under the marriage Act of Nigeria, whether a WILL is made or not must be bound by the provisions of the WILLS ACT and not under any native custom/tradition; this is one of the numerous benefits of a marriage conducted under our extant Marriage Act. For more on marriage, the work titled HOW TO BE LEGALLY MARRIED IN NIGERIA by Onyekachi Umah, Esq.
Where there is no WILL or there is an invalid WILL it will be said that the dead died intestate(without a WILL), so a court will on its own determine persons to manage and benefit from from the property/estate of such a deceased person. Since the deceased wasn’t smart enough to share his property, our wise courts will help him/her out. Administrators (personal representatives of a deceased) will be empowered by a court through a “LETTER OF ADMINISTRATION”to manage and administer the property of the deceased.
PERSONS ENTITLED TO LETTERS OF ADMINISTRATION.
Where a person dies without a WILL, the court will appoint persons to administer the deceased’s property. Court will consider the interest of the persons capable and willing to administer the property. The immediate family (husband/wife and children of the deceased; next-of-kin) is often appointed as administrators of the estate. In practise, most banks in Nigeria will only allow persons mentioned by a deceased in his account opening documents as his next-of-kin to have access to such deceased’s bank account. Also, note that many pension administrators and insurance companies will only honour the persons whose names were used as next-of-kin by a deceased in his dealing with them. A letter of administration will counter and prevail over person ordinarily appointed a a next of kin by a deceased because appoint of next of kin is not a WILL. Be mindful of persons you appoint as your next-of-kin and never hesitate to change such persons when the going gets tough. The court will consider the age and sanity of persons seeking for appointment as administrators. Below is a list of persons that can be appointed as administrators of estate according to their order of priority and suitability:
1. Husband or wife of deceased
2. Children of the deceased or grand children of deceased whose parent died during the life time of the deceased.
3. Father or mother of the deceased.
4. Brothers or sisters of the deceased of full blood and the children of such brothers or sisters who died during the lifetime of the deceased.
5. Brothers or sisters of half blood of the deceased or the children of any such half brother or sister who died during the lifetime of the deceased.
6. Grandfather or grandmother of the deceased.
7. Uncles and aunts of full blood or their children
8. Creditors of the deceased.
The above list is arranged according to order of priority; meaning that a father/mother cannot be appointed as administrator where there are capable and willing children while children will not be appointed where there is a willing and capable husband/wife. Court will not appoint a person less than 18 years unless there are two (2) other administrators with such a person.
STEP BY STEP GUIDE ON OBTAINING “LETTER OF ADMINISTRATION”.
Where there is no WILL no one can manage or administer the property of a dead person without a letter of administration from a court, except where the deceased was never married under the Marriage Act. Above are the persons that can be issued such letter. Below is a step to step guide on how to obtain such letter of appointment. Please note that, Letter of Administration cannot be applied for until after 14 days from the date of death of the deceased.
1. APPLICATION FOR LETTER OF ADMINISTRATION.
Fourteen (14) days after the death of a person his eligible dependents may apply for grant of letters of administration to enable them manage the deceased’s property. Such persons are to make an application in writing, and attach copies of the “death certificate of the deceased”, “Declaration on oath by executors”, “Oath/justification by sureties of the executors”, “completed administrative bond to cover the assets and liabilities of the deceased”, “inventory of the deceased’s property (movable and immovable)”, passport photographs of the prospective administrators and their two (2) sureties.
2. PUBLICATION OF APPLICATION IN NEWSPAPER.
Unlike in application for a “Probate”, in application for a Letter of Administration the applicants must make a publication of their application in a newspaper that circulates in the area. The publication is to inform the public of the names of the applicants, the estate of the deceased and period of time within which the public can protest against such application. This practise prevents fraud and helps inform the public of the dealings in the estate of a deceased. Any member of the public can protest and enter an objection within eight (8) days after a publication is made. Where an objection is received the court will determine such and consequently grant or refuse to grant a Letter of Administration.
3. GRANT OF LETTER OF ADMINISTRATION
Where there is no objection to an application for letters of administration or an objection was decided in favour of the applicants, the court will grant a letter of administration to the applicants. With a letter of administration, the administrators which are often the family members of the deceased can manage, use, sell, sue or be sued over the property of the deceased. By letter of Administration, property and ownership has been vested on them and property/estate of the dead recovered from all possible trespassers.
With any of the above documents from a court; a “Letter of Administration” (for where there is no WILL) or a “Probate” (where there is a WILL), holders of such are automatically vested with the rights over the property of their deceased. Property of the dead can no longer be said to belong to no one or be used by any person other than the certified personal representatives (administrators and executors). Any person that deals with property of the dead without such documents can be prosecuted both in civil and criminal laws. Get a probate or a letter of administration toady, and recover the property of you dead loved ones.