In Nigeria the Probate Registry, under the supervision of the High Court, has the exclusive jurisdiction to issue grants of probate in respect of a deceased person’s asset. It is the centre of testate and intestate administration of non-contentious Probate applications.
In Lagos, the family division of the High Court is charged with the responsibility of resolving contentious matters that arise in the course of granting a probate as well as revoking same, where found to have been fraudulently obtained.
A grant of probate is a legal instrument which provides the legal basis for the enforcement of the contents of the Will. The effect of a grant of probate is that it is accepted as conclusive evidence of the Executors’ title as personal representatives of the Estate.
What are the procedures for grant of Probate in Nigeria?
In every State in the federation, the Probate Registry has certain procedures that must be followed before a grant of probate or letters of administration is issued to an applicant. Testate succession involves the issuance of a grant of probate to persons appointed by a deceased person in his Will.
For example, in Lagos State, the application forms for grant of probate consist of the following:
bank certificate, application for grant of probate of the Will, oath for Executor/s, affidavit of attesting witness of the Will, inventory of assets, particulars of leasehold/freehold properties left by the deceased and lastly, a schedule of debts and funeral expenses.
The workflow for the process of issuing a grant of probate upon the discovery of a Will and after an application has been submitted to the Probate Registry is outlined as follows:
- Upon the discovery of the Will of the deceased person, whether lodged at the High Court or found in a safe place where the deceased person kept it before passing away, the family members or solicitor representing the family members will apply to the Probate Registry for the official reading of the Will.
- Probate Registrar shall, based on information supplied by the applicant/s and upon production of an official copy of the death certificate of the deceased person, cause a letter or a series of letters to be issued to the interested members of the deceased’s family, inviting them for an opening and reading of the Will, which shall take place at the Will-reading section of the High Court’s Probate Registry.
- At the date of the Will-reading exercise, the delegated officer shall cause to be opened, in the presence of all the invited and present family members, an envelope containing the Will of the deceased person, which would have been sealed upon the lodgement of same. After the public opening of the Will, the reading of same shall be done by the delegated officer.
- It is only after the Will has been read that the appointed Executors can proceed to apply for a set of application forms to be issued for the purpose of applying for the grant of probate to the Will, in the absence of any opposition to the validity of the Will.
- After the Executors have filled and signed the forms, they or their appointed solicitor shall submit the set of forms with accompanying requirements/documents which will include the photographs and means of identification of the Executors as well as other affidavits and documents that may be required by the Probate Registry. These requirements may vary because each application for a grant of probate is unique.
- After the submission of the application, either online or physically at the Probate Registry, a document known as a Bank certificate shall be issued. The purpose of the Bank certificate is to capture all liquid assets such as shares/stock and monies in Bank accounts which hold funds belonging to the deceased person. This Bank certificate could also be obtained at the time the application forms are obtained.
- This Bank certificate will be taken to all the Banks and Registrars of the Companies where the deceased person owned accounts and shares, where the information relating to such accounts and shareholding will be filled and endorsed on the Bank certificate. Such information includes the Bank balances and share portfolio.
- Where real property forms part of the Estate’s assets, the Valuation Unit of the Registry may be required to conduct an inspection of the property for the purpose of ascribing a value thereto, after which an assessment for the payment of estate duty shall issue. This is usually calculated as a certain percentage of the value of the Estate. The sum contained in the assessment sheet/probate pay sheet shall constitute the money to be paid as probate fee/estate duty.
- After the assessment has been issued by the Probate Registry, the applicant shall collect same and proceed to a designated collection Bank to make the payment after which an official government receipt, acknowledging payment will be issued to the applicant/s for submission at the Probate Registry.
- Upon submission and verification of payment, the file shall be passed to the department in charge of the marking of the Will. The appointed Executors are expected to attend the Registry for the Will-marking exercise which entails the Executors attesting that they shall do as expected by the Will and by law. They will also be required to sign against their names as stamped on the original Will.
- After the Will has been marked, the file shall be passed to the typing pool for the preparation of the Minutes and Order, which the Probate Judge is expected to approve before the preparation of the Grant of Probate.
- After this, the file is sent back to the Registry and the Grant of Probate is prepared, checked and sent to the office of the Probate Registrar for approval. The Probate Registrar, after verifying that due process has been followed, will append her/his signature to the Grant of Probate and the file shall be returned to the Probate Registry for the sealing of the Grant of Probate and delivery of same to the applicant/s or the applicant/s’ representative.
Conclusion
Lagos State has introduced electronic filing which makes the system faster and easier. It takes an average of 4 to 6 months to obtain a grant of probate in Lagos State once the forms have been properly filled and returned with accompanying documents and there is proper compliance with the requirements of the probate registry and payment of the estate duty is made immediately after the issuance of the assessment/ pay sheet.
Written by Olufe Popoola for The Trusted Advisors
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