The Probate Process

Probate and Will are two fundamental yet distinct concepts in estate administration. In our previous article, we examined their differences and emphasized that while both are essential in managing a deceased person’s estate, they are not interchangeable. You can read it here in case you missed it.

In this article, we will delve deeper into the probate process, exploring its significance and the challenges that arise when an estate goes through probate without a Will.

Can Probate Be Avoided with a Will?

No. The probate process cannot be avoided, even if the deceased left behind a valid Will. However, having a Will can streamline the probate process and reduce complexities.

The Probate process is still required despite the existence of a valid Will for the following reasons:

1. Legal Validation – The Will must be verified to confirm its authenticity and ensure it was made voluntarily by the Testator and in accordance with the law.
2. Legal Authority – The Executor(s) named in the Will must obtain a Grant of Probate from the Probate Registry where the Testator’s Will was lodged before he/she can legally administer/distribute the assets to the identified beneficiaries.
3. Fraud Prevention – Probate safeguards the estate, ensuring assets go to the rightful beneficiaries, preventing disputes and fraudulent claims.
4. Asset Transfer – Many financial institutions and government agencies (e.g., Banks, land registries) require probate before transferring ownership of assets to beneficiaries.

Avoiding the Probate process, strips the Executor(s) of the legal right to access, administer and distribute the deceased’s assets. Consequently, this means that:

• Banks will not release funds.
• Properties cannot be sold or transferred.
• Shares, Pension funds and other investments cannot be accessed.
• Beneficiaries may face delays or legal battles over asset distribution.

Challenges of Probate When No Will Exists.

When a person dies without a Will (i.e., intestate), the probate process becomes more complex. The estate must be administered according to statutory laws, such as the Administration of Estates Law and customary or Islamic inheritance laws, depending on the deceased’s background. This often leads to significant legal and administrative challenges.

Major challenges of which can be encountered during the Probate process where the deceased died without a valid Will are:

Lengthy and Bureaucratic Process

The process of securing Letters of Administration (instead of a Grant of Probate) can take months or even years due to court delays, verification processed, and multiple legal requirements. Applicants must provide an inventory of the assets sought to be administered, beneficiaries’ information, sureties, and affidavits etc., the compilation of which can pose a delay.

Family Disputes and Conflicts

The Probate process can be marred by disputes and conflicts, especially where there’s no valid Will and the intention of the deceased is not explicitly stated. For example:

• Multiple claimants, including spouses, children, and extended family, may contest asset distribution.
• Disagreements can lead to legal battles, further delaying the probate process.

Customary and religious laws may clash with statutory intestacy rules, causing additional disputes.

Risk of Mismanagement or Fraud

The court appoints administrators to oversee the estate, but if dishonest individuals are selected, there is a risk of misappropriation, fraud, or neglect. Some family members may also illegally sell assets, depriving rightful beneficiaries of their inheritance.

Strict Surety Requirements

The court typically requires at least two sureties to guarantee proper management of the assets left behind by the deceased. Sureties must own property within the court’s jurisdiction, making it difficult for some families to meet this condition.

Unfair Asset Distribution

Without a Will, assets of a deceased person are distributed based on intestacy laws, which may not reflect their true intentions. Furthermore, certain individuals or entities may be excluded from the inheritance if not legally recognized.

Having a Will does not eliminate the Probate process in Nigeria. However, it simplifies the process with the Will acting as a manual giving direction to the Personal Representatives of an Estate.

If you or someone you know is struggling with accessing the assets of a deceased loved one, call Meristem Registrars and Probate Services Limited today. We’re here to help you recover what’s rightfully yours, so you can focus on what truly matters—moving forward with hope and peace of mind.

Get in touch with us today at [email protected] or call us at +2342012809250