Grant of Probate is a legal instrument which provides the legal basis for the administering the Estate of a person who died with a written WILL properly lodged at the Probate Registry in line with the provisions of Order 58 Rule 2 of the State High Court of Lagos State. Some of the registration formalities are as follows:
- Inspection as to compliance with statutory requirement – Before a will is accepted for registration, the Registrar must carry out a physical inspection of it to make sure it complies with Section 17.
- The Will must be sealed and waxed.
- The Executor’s and Solicitors name must be reflected on the envelope.
- The prescribed lodgement fee must be paid, and official receipt issued by the Probate officer to stand as evidence of lodgement of the Will at the Probate Registry.
- After receipt of payment, the Probate Officer will enter the particulars of the WILL which includes the Testator’s name and address, Solicitors’ name and address, lodgement date and then assign lodgement number.
Step by step guide of the Grant of Probate Process/Testate.
- When a testator dies, the Probate Registry is informed by way of an application by the solicitor or family members that the testator has passed on and it is the intention of the family to have the WILL read. In Lagos State, the application forms for grant of probate consist of the following: Death certificate (original or CTC), photocopy of the lodgement receipt, 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 applicant’s or his/her counsel is to propose three (3) possible dates for reading the will, out of which the Probate Officer will choose a convenient time.
- At the date of the Will-reading exercise, the delegated officer shall cause the seal of WILL to be broken, in the presence of all the invited persons and family members, and the WILL shall be read by the delegated officer to the hearing of everyone present.
- After a WILL is read, the next step is for the Applicant’s counsel to obtain a CTC of the WILL from the Probate Registry and thereafter bring a formal application to the Probate Registrar for a Grant of Probate on behalf of Executors, in the absence of any opposition to the validity of the Will.
- After the Executors or their appointed solicitor has filled and signed the forms, it shall be submitted together 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. The probate forms issued to the Executor or his counsel comprise of the following documents; Application for Probate and letter of administration, Oath of Executor, Affidavit attesting the WILL, Inventory Form and Probate Bank Certificate (if applicable)- this is used to capture all liquid assets such as shares/stock and monies in Bank accounts which hold funds belonging to the deceased person.
- These requirements may vary because each application for a grant of probate is unique.
- Once the forms are completed, they are returned to the registry for processing. If real property forms part of the Estate’s assets, the Valuation office of the commissioner of Lands, Survey and Urban Development shall conduct an inspection of the property/ies for the purpose of ascribing a value to the Property, after which an assessment for the payment of estate duty shall be issued. Ten percent (10%) of the total monetary value of the estate are paid to the State Government as 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.
- After submission and verification of payment, the file shall be sent to the department responsible for marking the Will. The appointed Executors are expected attend the Will-marking exercise at Registry where they are required to attest that they will obey the instruction of the Testator as set out in 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 sent to the typing pool for the preparation of the Minutes and Order, which the Probate Judge shall approve before the Grant of Probate is prepared.
- Once prepared, it is 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 then the file is sent back 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.
Step by step guide of the Grant of Probate Process/Intestate
The procedure outlined above also applies to intestate administration. However, the difference with the application for letters of administration is that the deceased person did not write a Will to guide the administration of his/her estate. It is important to note that not just anyone can apply for the letters of administration. The Probate Registry usually considers the provisions of the Law which states the order of distribution of an intestate’s assets with the spouse and children of the deceased person as first in line. The application forms for letters of administration consist of the following: death certificated, bank certificate, application for letters of administration, administration bond, oath for administration, declaration as to next of kin form, inventory of assets form, particulars of freehold/leasehold properties left by the deceased, schedule of debts and funeral expenses.
- Once the forms have been completed and a value of the assets declared is calculated, the assessment sheet/pay sheet is issued for the applicants to pay the probate fees. After payment is made, there is the publication of the Estate in a National daily newspaper. The purpose of the publication is to ensure that the public is aware that letters of administration will be issued to the applying administrators, in the absence of any opposition. This publication gives any member of the public an opportunity to file a caveat or enter an opposition to the process, which will be upheld and referred to the court, if the basis of the opposition is substantial.
- Where there is no opposition, after 21 days from the date of the publication, the process will continue by the preparation of the minutes and order.
- The minutes and order with the file will be passed to the Probate Judge for approval. After approval, the final letters of administration will be prepared and thereafter dispatched to the Probate Registrar to be signed and delivered to the applicants.
On an average, it takes about 4 to 6 months to obtain a grant of probate or letters of administration in Lagos State once the forms have been properly filled and submitted with supporting documents to the probate registry and payment of the estate duty has made following the issuance of the assessment/ pay sheet, barring administrative delays. With the introduction of the electronic filing system, it is expected that with time, the process will become faster.
DISCLAIMER: This article is only intended to provide general information on the subject matter and does not by itself create a Client/Attorney relationship between our readers and our firm or serve as a legal service. Specialist legal advise should be sought about the specific circumstances as they arise.