Introduction to Probate and Administration of Estate

Introduction:

After a person dies with or without a will, he may leave behind property. This note is an introduction to how the property is administered or managed. The note, being introductory, will highlight the scope of this topic, the laws governing probate and administration of estates, and the meanings of common terms such as estate, testator, executor, probate, letters of administration, probate action, and intermeddling.

Scope of Probate and Administration of Estate:

The scope of probate and administration of estate is quite broad. Among others, it deals with:

i. How to apply for probate and letters of administration.

ii. How the property of the deceased can be protected prior to the appointment of persons to manage it.

iii. What happens if there is a failure to apply for probate or letters of administration.

iv. Probate actions

v. Administration actions

vi. Provisions for administration during minority, among others.

Laws Governing Probate and Administration of Estate:

1. Administration of Estates Act 1961 (Act 63): This is an Act consolidated and amending enactments providing for the administration of estates.

2. The Wills Act, 1971 (Act 360): This is an Act to regulate the making of wills and to give effect to provisions therein. Among others, it discusses the power to make a will, the formalities of a will, interpretation of a will, revocation and revival. When the validity of a will is in issue, the provisions of this Act are relied upon to determine such issues.

3. Intestate Succession Act, 1985 (P.N.D.C.L. 111): This Act applies to the devolution of the estate of a person who dies intestate (that is without a will).

Meanings of Common Terminologies Used in Discussing Probate and Administration:

1. Estate:

Per Section 108 of Act 63, “’estate’ means all property, movable and immovable.” Per Black’s Law Dictionary, estate is:

1. The amount, degree, nature, and quality of a person's interest in land or other property; esp., a real-estate interest that may become possessory, the ownership being measured in terms of duration.

2. All that a person or entity owns, including both real and personal property.

3. The property that one leaves after death; the collective assets and liabilities of a dead person

When used in relation to a deceased person or in the context of administration of estates, it means all the property of the deceased person.

2. Testator:

The person who makes a will. "Testatrix" is an older term for a female testator.

3. Executor:

This is the person appointed by a testator to carry out the instructions of the will. "Executrix" is an older term for a female executor.

4. Probate:

In Section 108 of Act 63, probate is defined as “probate of a will.” In Black’s Law Dictionary, a more comprehensive definition is provided as follows:

The judicial procedure by which a testamentary document is established to be a valid will; the proving of a will to the satisfaction of the court.

When the will is established to be valid by the court, it can be said that the court has granted probate of the will. The general effect of this would be that persons named as executors in the will that has been granted probate or admitted to probate can administer the estate of the deceased. This explanation is buttressed by the provision in Section 61 of Act 63 , which reads:

A grant of probate is necessary to entitle an executor to administer the property, whether movable or immovable, of the testator. Before probate, the executor may, for the benefit of the estate, exercise the functions which pertain to his office but he shall not be entitled to make a disposition of any property.

5. Probate Action:

In Order 66 Rule 32 of C.I. 47, it is provided that a probate action means:

An action for the grant of probate of the will or letters of administration of the estate of a deceased person or

[An action] for the revocation of such grant or

[An action] for a judgment or order pronouncing for or against the validity of an alleged will, being an action which is contentious or not common form probate business.

Thus, any action that is an action for the grant of probate or letters of administration, an action to revoke a grant of probate or letters of administration, or an action for judgment that a will is valid or invalid, is a probate action.

6. Letters of Administration:

This is the legal authority given by the court to persons known as administrators to administer the estate of a person who died without making a valid will. It also applies where a person leaves behind a will but does not appoint an executor to administer his estate. In Black’s Law Dictionary, 9 ^th ed., it is defined as:

A formal document issued by a probate court to appoint the administrator of an estate.

7. Caveat:

In Order 66 Rule 11, it is provided that:

Any person who has or claims to have an interest in the estate of a deceased and who wishes to ensure that no grant of probate or letters of administration is issued without notice to the person, may file a

It may thus be said that a caveat is a formal legal notice filed by a person with an interest in a deceased's estate to prevent the court from granting probate or letters of administration without first notifying them.

8. Intermeddling:

This occurs if a person deals with the property of a deceased person without obtaining letters of administration or named as an executor.