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STEP BY STEP GUIDE ON OBTAINING A PROBATE.
Guidelines you should follow when obtaining a probate
CHAMAN LAW FIRM
5/11/20243 min read
STEP BY STEP GUIDE ON OBTAINING A “PROBATE”.
A Will may be disputed or undisputed, Non-contentious, common or disputed, contentious, solemn. A Will is said to be disputed, contentious and solemn when the people concerned in the Will are contesting the validity of the entire Will or parts of it.
It may be their claim that a Will was not signed by the purported maker, or was signed by the purported maker under fear, duress, and insanity or without witnesses etc. Often times, an interested person writes and sends a “CAVEAT” (in this context, it is a written notice given to a court or Judge warning it not to admit, hear and accept a particular Will).
Hence, instead of executing such Will, court will first consider such caveat, contest and verify the protests therein. After a careful evaluation and assessment of evidence, court may hold the WILL as valid or invalid. Where a Will is held by court as valid, the executors and beneficiaries will go on to obtain grant of probate. Where court holds that a Will is invalid, such a Will can never be used by any person. The property/estate of the deceased will be treated as if there was no Will it all (deceased died intestate).
SEARCH AND REQUEST FOR “WILL”
Where there is a Will in custody of a deceased’s lawyer, such a lawyer has a duty to intimate the family of the deceased, fix a date, time and venue to unseal and read out such Will. Where Will is in the custody of the Probate Department, of a State High Court, the lawyer is expected to write to the Probate Department, announcing the death of the deceased and seeking a date, time and venue for the deceased’s Will to be read out.
Death certificate of the deceased must be attached to the letter. It is advised that lawyers register and safe keep Wills in Probate Departments/Registries during the life time of their clients instead of keeping same themselves. Please note that where a person dies in a hospital doctors issue death certificate but a death certificate for any kind of death at any place can be obtained from the National Population Commission (NPC).
PRESENTATION, UNSEALING AND READING OF “WILL”
In an open court by a Probate Registrar or in a law chamber by a lawyer on an agreed date and time, a deceased’s WILL may be presented to all persons present to confirm that such Will is still sealed before it is unsealed, opened and read out to all.
The Will will state property (assets and liabilities) given out, people to receive such property, terms and conditions for receipt such property, if any and people to manage same among other instructions. In some cases, a lawyer present, unseal and read out WILL in deceased’s house; I detest such practise. It is unprofessional and exposes such a lawyer to an unimaginable occupational hazard.
APPLICATION FOR GRANT OF PROBATE
Firstly, “Probate” is a letter of authority given by a court of law to person(s) mentioned in a Will to manage property of a Will-maker (deceased) for themselves and or for others. No person whose name is mentioned in a Will as an executor (managers of the property of a deceased) or a beneficiary (recipients of property in a Will) can manage or receive such a property from a WILL without applying and receiving a grant of “Probate” from a law court.
Persons named in a Will as “Executors” are expected to obtain a grant of probate, by making a written application for probate attached with copies of “Will”, “death certificate of the deceased”, “Declaration on oath by executors”, “Oath/justification by sureties of the executors”, “completed bond by the executor(s) to cover the assets and liabilities of the deceased”, “inventory of the deceased’s property (movable and immovable)” and passport photographs of the executors. Where there is a Will but no executor was appointed by the maker in the Will, court will appoint executors; often times court will appoint the beneficiaries as executors to the Will.
GRANT OF PROBATE
Where the executors have complied with the above requirements, a Probate Registrar will grant probate to the applicants. With the Probate the executors can then administer, manage, share, sell, lease, use, sue and be sued the property of the deceased as if they were the deceased himself; because they have stepped into his shoes. Where executors are different from beneficiaries, such executors upon obtaining a grant of probate are equally empowered to share, devolve, vest, transmit and transfer the property of the deceased to his beneficiaries according to the deceased’s Will.
Please note that, on issues of land in Lagos State and most states of the former Western Region of Nigeria, executors can only transfer/vest ownership of land of a deceased to his beneficiaries through a “DEED OF ASSENT”. Any one that tampers with property of a deceased person without a “Probate” or a “letter of administration” can be sued both in criminal and civil laws.
