As stated in my last article on inheritance law, securing estate succession and inheritance rights by way of a grant of Probate or a letter of administration requires first having a set of personal representatives recognized by law.
This article will be dealing with the topics of :-
– Who personal representatives are.
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– Eligibility criteria for personal representatives.
– The types of personal representatives allowed under Nigerian law
– The duties of personal representatives
– The grounds for the removal of personal representatives
– Liabilities of personal representatives
Who is a personal representative?
A personal representative in Inheritance and Estate Succession Law is a person or corporation appointed and charged with carrying out the instructions of a deceased testator as contained in a will or disposal of assets in an estate according to the directions of law or a court where the deceased did not have a will, and the administration of any residuary assets left in the estate of a deceased.
What are the types of personal representatives recognized by Nigerian law?
Personal representatives can be :-
– Executors named in a will.
– Administrators appointed by a Probate court
– A Trustee appointed by a will or a Probate court.
What actually happens where an appointed personal representative also dies?
Where a personal representative dies, his own personal representative becomes a representative of the original party that appointed the first representative. This chain of representation can only be broken by :-
– The first personal representative not having a will himself
– The failure of the first personal representative not naming an executor in his will
– The failure of the original personal representative to obtain probate of the will from the original testator.
Who is qualified to be a personal representative?
The following persons can be personal representatives –
- The Administrator-General of a State
- A partnership
- A Corporation
- Public Trustees
- Infants (subject to certain conditions)
What happens when an infant or minor is appointed as an executor in a will?
Such an infant will be unable to obtain a Probate grant or act as an executor until he reaches the age of adulthood, which means that in his place a temporary executor known as a Guardian ad litem will have to act.
When are Administrators to be appointed by a court?
Administrators are appointed when :-
– A person dies intestate (without a will).
– No executor is appointed in a valid will or the one appointed cannot take up the administration.
– Where there’s pending litigation on an estate left behind as a result of intestacy.
– Where an executor becomes mentally disabled.
Who is entitled to act as an administrator for the purpose of securing a letter of administration?
The following persons are eligible to act as Administrators in the event of intestacy –
– Spouses married under the Matrimonial Causes Act
– Spouses married under Customary law
– Children of the deceased
– Parents of the deceased
– Full-siblings of the deceased
– Half-siblings of the deceased
– Grand parents of the deceased
– Uncles and aunts of the deceased
– The Administrator-General of the state where the estate of the deceased is located
– Creditors of the deceased
What are the accounts to be maintained by a personal representative?
The accounts to be maintained by a personal representative are :-
– Inventories
– Accounts of Administration
– Vouchers with the executor or Administrators
– Affidavits of verification.
What are the guidelines for personal representatives in dealing with the estate of a deceased?
The guidelines for personal representatives are :-
– To maintain accounts in their proper format.
– To maintain separate bank accounts so as to prevent co-mingling of funds.
– To obtain receipts for all payments.
– To make payments out of estate accounts by means of cheques.
When can legal liabilities arise against personal representatives in the discharge of their duties?
Liabilities can arise against personal representatives in the following cases –
– For cases of waste by the personal representative.
– For taxes due on the estate managed by the personal representative.
– Where there is fraudulent conversion of the estate by a personal representative.
– For the Liabilities of co-personal representatives in the discharge of their duties.
What are the qualities of a personal representative?
A personal representative should be :-
– Willing and able to exercise professional skill in managing the estate.
– A person of integrity not inclined to profit from the estate.
– Young enough to survive a testator.
– A person without a conflict of interest.
– Literate and skilled enough to function in the capacity of a personal representative.
– Matured and able to work with other personal representatives.
– Familiar with the business of the deceased so as to avoid mismanagement and waste.
Personal Representatives – Guardians & Administrators
Pursuant to my last article on this subject matter, it should be noted that grants of representation can be either :-
– General :- To cover all assets of the estate; or
– Limited :- Restricted in terms of extent of purpose.
This article installment will be looking more at legal rules surrounding Guardians, Administrators and Executors as follows :-
What are guardians required for probate matters?
Where an infant is appointed as an executor he cannot perform in that capacity during his period of minority as a result of which probate will have to be procured by an adult known as a Guardian AD LITEM who will then be given a Grant Durante Minore which will empower him to act in the place of the infant during his minority years.
What does the law say about individuals who attempt to or actually administer and deal in the assets of an estate without a probate grant?
Such individuals, regardless of their relationship with the testator (except where they fall under the inheritance priority listing under various Administration of Estate Laws in Nigeria) would be legally classified as unauthorized meddlesome interlopers known in law as Executors De Son Tort.
Are named executors in a will under a legal obligation to act in that capacity whether they want to or not?
No they are not. Any executor unwilling to act in that capacity can reject his appointment via a process called a renunciation. This renunciation cannot be partial.
When exactly can an administrator be appointed?
An administrator should be appointed when :-
– A deceased dies fully or partially intestate.
– No executor is appointed in a valid will or the one appointed cannot take up the administration.
– There is pending legal action requiring the appointment of an administrator known as an ADMINISTRATOR PENDENTE LITE.
– An appointed executor becomes mentally disabled in which case an ADMINISTRATOR DURANTE DEMENTIA is appointed.
– An executor fails to complete an execution brief which may require that a probate court appoints an ADMINISTRATOR DE BONIS NON ADMINISTRATION.
What exactly is a double probate?
A double probate grant occurs where a willing executor named in the will is not able to act when the other executors got their grants , as a result of which he then applies later when an encumbrance or obstruction to his initial probate grant is removed.
Editor’s Note: Inheritance law continues to evolve in Nigeria. For example, Abia State signed this into law.
Governor Okezie Ikpeazu has granted his assent to the Bill which guarantees the right of female persons to inherit and own property in their father’s family, thereby making it Law in Abia State.
It will be recalled that the Abia State House of Assembly passed the Bill some weeks ago to bring Abia State in conformity with international best practices in the area of eliminating all forms of discrimination against women.
While appending his signature on the Law, Governor Ikpeazu made it clear that his administration shall at all times lean on the side of reason and common sense in the discharge of its obligations to the people of Abia State, noting that it has become anachronistic to continue to treat women as second class citizens even in their own families.
The Governor thanked the State Assembly led by the Speaker for dredging up enough courage to pass this Bill which he described as historic, positively disruptive and capable of setting our society on the path of equal opportunities and sustainable development.
The Governor is of the firm view that this is about the most important legislation passed by the State House of Assembly.
He congratulated Abia women for this feat and assured them that the Abia State Government will continue to support them.
The proper citation of the Law is THE FEMALE PERSONS RIGHT OF INHERITANCE OF PROPERTY LAW, 2022, while the Long Title of the Law is “A Law to provide for the Right of a Female Person to Inherit and Own Property and for other Matters Connected Therewith”.
By this, Abia State has become one of the first states in Nigeria to have this Law fully in place.
The Honorable Speaker of the State Assembly, Rt Hon Engr. Chinedum Orji, the Permanent Secretary/Clerk of the State House of Assembly, Sir John Pedro Irokansi, PhD, Secretary to Government, Barrister Chris Ezem and the Chief of Staff to the Governor, Chief Okey Ahiwe witnessed the event.
Sir Onyebuchi Ememanka
Chief Press Secretary to the Governor.