•How To Administer The Estate
Letters of administration is the legal authority granted by the Probate Court to appropriate persons called the administrator or administratrix to administer the estate of a person who died Intestate. A person is referred to have died Intestate when he dies without a valid Will. Asides the fact that letters of administration are primarily granted in cases of intestacy, it may also be required where there is a will without competent Executors. Such circumstances may occur where all the Executors are deceased, the appointment of Minors as Executors or the failure of the executors to take up their responsibilities after the death of a Testator. An administrator of an estate derives his authority to deal with the property of a deceased person from the grant of a letters of administration. It is imperative to state that it is a mandatory requirement of the law that the estate of every deceased person who died intestate must be granted the letters of administration before any person may deal with the properties. This position of the law is sacrosanct irrespective of the type of marriage the deceased contracted during his lifetime..
After the letters of administration is granted, the fundamental factor that determines the distribution of the estate of the deceased is anchored on the type of marriage contracted by the deceased person. The estate of a deceased who contracted a statutory marriage will be administered under the Administration of Estate law of the state the deceased resided prior to his death. Conversely, if the intestate deceased person contracted a customary marriage, the estate shall be distributed in accordance to the customary law of succession of the ethnicity of the deceased. It is very prevalent that most people contract different types of marriage with the same person. To put this in proper perspective, some people will marry an individual according to their native law and custom which commonly referred to as engagement. It should be noted that the designation “engagement” is wrong. Rather, what the parties have contracted is a valid customary marriage. A further celebration of another marriage ceremony at a licensed church or marriage registry to marry the same person has the effect that the parties married themselves three times over.
In such circumstances, the statutory marriage which was contracted at the registry or the church will take precedence over the customary marriage contracted for the purpose of succession. In other words, the estate of the spouses in such a marriage will be subject to the administration of estate law and not their customary law.
The moment a person dies intestate, it is a common fact that the contentions for whom should be granted the letters of administration and who is entitled to inherit the estate begins almost immediately by family members. However the contention, it is sacrosanct that the letters of administration can only be granted to persons who are interested in the estate. The Administration of Estate laws of most states stipulate that the spouse and the children of a deceased person who contracted a statutory marriage must be given priority over any other interested party. Consequently, the spouse and children of the intestate deceased are the rightful persons to apply and be granted the letters of administration. However, the surviving spouse may be required to nominate a person considered fit as a co-administrator in an estate that involves minors. There is no known law that such person who is nominated must be related to the deceased. In a situation where the children have attained the age of majority, they should be co-administrators with their surviving parent.
Under Section 49 of the Administration of Estate Law of Lagos, persons who are entitled to the grant of letters of administration in order of priority are:
•The surviving spouse, •Children of the deceased or children of the children that predeceased the deceased
•Parents of the deceased, •Siblings of the full blood of the deceased or their surviving children in a case they predeceased the deceased, •Siblings of the half blood or their surviving children
• Grandparents of the deceased, •Uncles and Aunties of the deceased, •Creditors of the deceased.
Asides the priority of the grant of letters of administration, the law is also specific on how the estate is distributed to the parties interested. Where the deceased is survived by a spouse and children, the spouse will take all the personal properties of the deceased which includes clothes, jewelleries, cars, furniture, artworks and other assets of personal use absolutely. In addition to that, the spouse is entitled to one-third of the estate while the children of the deceased will take two-thirds of the estate. It is imperative to note that this sharing formula does not take cognisance of any family member. It belongs totally to the spouse and the children of the deceased. However, the distribution assumes a different dimension where the deceased dies without a surviving child or spouse.
If the deceased is survived by a spouse but no child, has no parents, siblings of the whole blood or the children of the siblings, then the spouse will inherit the estate absolutely without sharing with anyone. Whereas, if the deceased is survived by a spouse but no child but if he is survived by either parent, the spouse will take all the personal properties and two-thirds of the estate. The remaining one-third will be taken by the parents of the deceased in equal shares. Where there are no parents but there are surviving siblings of the whole blood, the siblings will take the remainder one-third which should have been taken by the parents.
Where the deceased is not survived by a spouse but survived by children, the children will take all the properties absolutely regardless of whether there are surviving parents or siblings of the deceased. However, the situation where the children are minors is always contentious on the appropriate person to be granted the letters of administration on behalf of the children. However, if the deceased is not survived by a spouse or children, the estate will be taken by his parents in equal shares. In a situation he is survived by a single parent, such parents will take the estate absolutely. But where the parents are also deceased in addition to the fact that the deceased was not survived by a spouse and children, the estate will be taken by the siblings of the whole blood.
Further to the above, if there are no known siblings of full blood, the estate will be taken by siblings of half-blood. Where there are no full or half-siblings or their children, the estate will be taken by the grandparents if alive. Where the grandparents are also deceased, the uncles and aunts of the full blood will be entitled. Priority will be given to uncles and aunties of full blood over half-blood. Where there are no known survivors, the estate will revert to the state government.
In determining what constitutes the value of one-third or two-thirds of the estate entitled to the spouse as the case may be, the proper resolution is to engage the services of a professional estate valuer. It is also apt to state that the surviving spouse cannot inherit any part of the estate of a deceased which is subject to devolution by customary law. To illustrate this fact, a widow will not be able to inherit the principal house (igi ogbe) of the deceased if such a deceased is a native of Benin or other ethnicities that practice such a culture. Under the bini culture, the principal place of residence of a deceased person devolves upon the first male child of the deceased absolutely and not a spouse by any stretch of the imagination. Another exception to the inheritance of a spouse is personal properties which were subject to the business use of the deceased. In other words, the spouse is precluded from inheriting cars or properties that were utilised by the deceased in his lifetime for his business or commercial enterprise.
A spouse’s right to the estate of a deceased person is not impaired primarily because of incidences of matrimonial disputes during the existence of the marriage or physical separation from the deceased prior to his death. It is also not significant that divorce proceedings had been instituted and ongoing prior to the death of the deceased. Rather, the most vital consideration under the administration of estate law is that the marriage was not dissolved by a competent court during his lifetime of the deceased.
The concept of separation and divorce has different consequences according to the law. Some people falsely hold the notion that parties to a statutory marriage can dissolve the marriage merely by separating over an extended period of time. It is important to be guided that the only valid dissolution of a marriage recognised by the law is the dissolution granted in a state high court. For instance, the fact that Mr X separated from Mrs X for a continuous period of thirty years does not mean that they are divorced. Under the law, the marriage is recognised as valid and subsisting irrespective of the years of separation. In actual fact, any subsequent marriage to another person by either of the parties either statutorily or under customary law shall be null and void and of no effect. In a circumstance where one of the parties dies intestate during the continuance of the separation, the surviving spouse will take the benefit of the estate to the detriment of the other person who married the deceased during the separation. Such a person has no status under the law.
Another fundamental issue that commonly occurs after the death of a deceased person, especially men, is the proprietary rights of mistresses particularly those who had children with the deceased. Cohabitation and single parenthood are gradually becoming a norm in our society particularly due to the influence of western culture. Irrespective of the fact that couples cohabit for an extended period of time with children to show for the union, the administration of estate law makes no provision for such mistresses in the absence of a valid will by the deceased. However, the rights of children from such a relationship will be discussed in a subsequent edition.
It is apparent from the analysis of the administration of estate law that spouses are the most important consideration in the distribution of the estate of a deceased person. These provisions of the law have been vehemently criticised by schools of thought who are of the opinion that the law is unjustifiably generous to the spouse to the detriment of the children and most especially the family members who may impact the life of the deceased. The law favours the spouses to the exclusion of the parents and relatives. In practical terms, women are the most affected by succession rights. The deceased person may have been the breadwinner of the family which may ultimately expose them to neglect if the spouse who inherits a large share of the estate declines to take over such responsibilities.
Other proponent who supports the position of the law posits that there is an increasing change in family structure in recent times which encourages individualism. The influence of westernisation, education and enlightenment has further enhanced the economic positions of most wives in marriage as equal contributors to the family. A law which deprives them of the benefit of their sweat is an apparent injustice. Some wives in some situations elect or are compelled to sacrifice their career aspirations for childbearing and management of the home fronts. These sacrifices consequentially prejudice their economic positions in the marriage putting them at a disadvantage and subjecting them to reliance on their spouse for sustenance. The practical truth is that society places these social obligations on the wives and not the husbands. Any distribution that is opposed to the administration of estate law will endanger the spouse and most particularly the children which is always the situation in customary succession.
Olamide Onifade is a practicing lawyer and the founder of Olamide Onifade & Associates.
2nd Floor, 149, Ogudu Road, Ogudu, Lagos