ADMINISTRATION OF ESTATES

ESSENTIALS OF ADMINISTRATION OF ESTATES

CONTENTS

1.0    Introduction

2.0    Objectives

• Main Content
• Administration of Estates

4.0    Conclusion

5.0    Summary

6.0    Tutor-Marked Assignment (TMA)

7.0    References/Further Readings

INTRODUCTION

This part will discuss the essential issues involved in the administration estates, in order for you to know the basic things concerning them. As such, some of the issues may not be comprehensively discussed. Administration of estates involves running and/or dealing with the property of a deceased person. It does not matter whether such a person left a will or not. The reason why the estate of a deceased person has to be administered according to law is because those property belonged to the deceased and for any other person to be able to deal in them legally, procedure laid down by law on this has to be complied with otherwise, such property cannot be legally dealt with.

OBJECTIVES

In this Unit, you will learn about how to administer the estate of a deceased person according to law. You will essentially learn about grant of probate, letters of administration, executors and administrators, their duties and liabilities, those entitled to apply for a grant, when letters of administration de Bones non may be granted and when grant of probate or letters of administration could be revoked. You further learn about the office of the Administrator-General and resealing. At the end of this Unit, you should be able to:

• Know what a grant of probate and letters of administration is.
• State those entitled to apply for letters of administration in order of priority
• Explain the liabilities of sureties, when grant of probate and letters of administration could be revoked
• Understand what is resealing and its purpose
• Acquire practical knowledge about the issues involved in administration of estates.

MAIN CONTENT

Administration of Estates

Before attempting an examination of the issues involved in the administration estates, you need to know that where a person died leaving a will, he or she is said to have died testate, and intestate, where the deceased did not leave any will. You need to know also that those who are granted letters of administration in respect of the estate of a deceased’s estate who died intestate are called administrators, while those who are granted probate in respect of a deceased’ estate who died testate are called executors.

The issues involved in the administration of estates are as follows:

1.   Probate and Letters of Administration

Upon the death of a person intestate and until the letters of administration  is granted in respect of the estate of the deceased, such estate vests  in the Chief  Judge of that State. See Section 10 of the Administration of Estate Law, Cap. 3, Laws of Lagos State, 1994.

The letter of administration gives the legal powers to deal with the estate of the deceased and may be applied for by the personal representatives of the deceased. On the grant of the letters of administration, those named in it can legally and validly deal with the estate of the deceased.

In order to avoid contention that often trail who is entitled to apply for letters of administration especially between the surviving spouse of the deceased and family members, the various rules or courts have assisted in streamlining and eliminated doubts as to those entitled to apply and the order of priority in which they can apply. Thus, if those entitled are absent in the order of priority, the next in line can apply. The order is as follows:

i.) Surviving spouse.

ii.) The surviving children of the deceased who are over 21 years or the children of such children who predeceased the deceased.

iii.) Parents of the deceased.

iv.) Brothers and sisters of whole-blood with the deceased or their children where they predeceased the testator.

v.) Brothers and sisters of half-blood or their children over 21 years old where they predeceased the testator.

vi.) God patents.

vii.) Uncles and Aunts of whole-blood. viii.) Uncles and Aunts of half-blood. ix.) Creditors.

In respect of the above, see Order 58 Rule 50 Cap. 61 High Court of Lagos State (Civil Procedure) Law, 1994 which deals with cases of those who died testate, i.e. leaving a will and Section 49(1) Administration of Estate Law, Laws of Lagos State, 1994, which deals with priority issues in succession and may serve as a  guide to determine priority in cases of intestacy.

You have to note that letters of administration cannot be granted to more than four persons on the same property and that in a situation where persons originally granted letters of administration dies or have been discharged or removed on the order of court, letters of administration de Bones non may be granted for the purposes of allowing new administrators to finalize the administration of  the  estate.

Administrators of a deceased estate whether real or personal are accountable and are also liable in the same way as the executors of the deceased. It is however possible to grant separate letters of administration in respect of real and personal estate. In some cases however, the grant may be limited to the real estate.

A trustee corporation may be granted letters of administration whether solely or together with others in case of intestacy and can be granted probate if named in a will as an executor.

Until they attain the age of majority (21 years), infants cannot be named as an executor but where he so named and is the sole executor, he can be granted letters of administration with the will annexed to his guardian or any other person as the court might name. See Sections 26(1) and 29(1) of the Administration of Estate Law, Laws of Western Nigeria, 1959.

Where there is a pending litigation in court concerning the validity or otherwise of  a will, the court may grant the administration of the estate concerned to an administrator, known as administrator pendente lite.

2.   Grant to the Administrator-General

The Administrator-General is a corporation sole with perpetual seal and his office  is one created by statute. See for example, the Administrator-General Law  of Lagos State, Western Nigeria, Cap. 2; for Lagos State, Cap. 4 and also Cap. For Eastern Nigeria.

The Administrator-General can act as executor or administrator of an estate and  can use and be used in its corporate name. He may even be named as a sole executor in a will.

In applying for the letters of administration or proving a will, the Administrator- General has to follow the same procedure to be followed by an individual but he is no required to enter into a bond as an individual would.

You have to note that for reasons best known to those concerned, it is possible for those who have been granted probate or letters of administration to transfer the estate covered by such grant to the Administrator-General with the prior  consent  of the Administrator-General.

In certain situations, it is possible also for the Administrator-General to apply to  the court as may be prescribed by law, to be granted probate or letter of administration where he has knowledge that an estate is unrepresented. The court can grant such application if satisfied that such estate is indeed unrepresented.

3.   Administration Bonds and Sureties

An administrator in most cases are required to enter into a bond in a stated sum (this may be up to two times the gross amount of the estate) before letters of administration could be granted. Sureties are required to guarantee that the administrator on the grant of the letters of administration will collect the same, enter and administer the estate of the deceased, real or personal.

4.   Liability of Sureties

As stated above, the sureties guarantee the administration of the estate and they must endeavour that the administrator perform his duties by duly administering the estate. An administrator is primarily liable for any breach committed against the estate but the sureties may be liable for improper administration of  the  estate where such loss cannot be made good by the administrator. The sureties may however apply to court to be relieved of liability under the bond by way of an indemnity where the administrator is likely or is in the process of committing a breach a breach against the estate. See The Anderson-Berry (1928) Ch, 290. See also Chief Registrar v. Somefun [1930] 13 N.L.R. 89.

5.   Revocation

After probate or letters of administration has been granted, an application for revocation of the same may be made to the Probate Registrar on various grounds. See Ijeni v. Ijeni [1967] 9 CCHCJ 2175. Such grounds may include a mistaken grant in respect of the estate of someone still alive, the disappearance of  the original grantees, where the grantees are incapacitated, where the grant was obtained by fraud or the grantees lacked sufficient interest in respect of the estate over which it was granted. See Ephraim v. Asuquo [1923] 4 N.L.R. 98.

A grant will however not be revoked merely because an executor has not complied with an order of court for account. See In the Estate of Cope [1954]  1 All E.R.  698.

An application for revocation is required to be made within six months of the  grant, although the time may be extended on ground grounds.

6.   Resealing

Resealing is done where a grant which has been sealed originally in one State of Nigeria or outside the country is sealed again with the seal of a court of another State, with the purpose of making the grant effective within the jurisdiction where  it has been resealed. This is usually done where the deceased has estate located outside the State which originally issued the grant. See Section 75 of the High Court of Lagos State (Civil Procedure) Law and corresponding provisions in other High Courts Rules in Nigeria.

SELF ASSESSMENT EXERCISE (SAE) 1

In order of priority, mention those entitled to apply for a grant of letters of administration and in the absence of all those entitled to apply what becomes of   the estate?

CONCLUSION

Administration of estates of deceased persons is vital to government both from the practical aspects of the protecting the interest of beneficiaries and seeing to the due administration of that estate. This is what informed the requirement for sureties, apart from ensuring that ineligible people or people without sufficient interests do not apply for a grant. You should able to apply the knowledge gained in this unit   to practical life situations.

SUMMARY

In this Unit, you have learnt about the essentials involved in the administration of estates. Importantly, you have learnt about the grant of probate and letters of administration, the class and priority of people entitled to a grant, duties and liabilities of executors and administrators. You further learnt that a grant  of  probate and letters of administration gives the legal powers to deal with the estate of the deceased and that these could be revoked on grounds of a mistaken grant in respect of the estate of someone still alive and so on. You were exposed to the office of the Administrator-General and resealing.

TUTOR-MARKED ASSIGNMENT (TMA)

1. State the requirements for a grant of letters of administration and the grounds upon which the same could be revoked
2. After the death of Jalingo, since no will was found to have been left behind by him, his wife – Anyigba, who did not have any child for Jalingo applied for a grant of letters of administration in respect of her husband’s estate. After the grant of the letters of administration in Anyigba’s favour, Jalingo’s mother – Mummy J filed a action in court seeking a revocation of the letters of administration granted to Anyigba, contending that according to their native custom, a wife  who did not  have any child for the husband cannot have a say in respect of the late husband’s estate and that she is the person entitled to the estate or her son since she was the one that brought him up. It was later discovered that Jalingo in fact left a  will where he named his father – Daddy J and mother, Mummy J as the only executors of his will. Identify the legal issues involved and advise the parties.

REFERENCES/FURTHER READINGS

Hayton, D.J. (2001). Hayton & Marshall Commentary and Cases on The Law of Trusts and Equitable Remedies. London: Sweet & Maxwell.

Jegede, M.I. (1999). Law of Trusts, Bankruptcy and Administration of Estate.

Lagos: MIJ Professional Publishers Limited.

Administration of Estate Law, Cap. 3, Laws of Lagos State, 1994. Administration of Estate Law, Laws of Western Nigeria, 1959.

Administrator-General Law, Cap. 2, Laws of Western Nigeria, 1959. High Court of Lagos State (Civil Procedure) Law, 1994.