So, the unthinkable happened and the unfortunate preceded it. A common tale with an all-too-common end in this part of the world. Our people, for a host of reasons, have a negative attitude towards will making and usually don’t leave anything written behind.
However, since it’s so common it does beg the question, what does happen to your assets if you pass without making a will?
The legal answer is that much of who will control and inherit the property will depend on who obtains a document known as Letters of Administration.
LETTERS OF ADMINISTRATION
Letters of Administration is the legal authority granted by the court to a person known as an Administrator, giving powers to person to distribute the assets of the deceased.
WHO IS ENTITLED TO BE APPOINTED AS ADMINISTRATOR
The reality is that the court has the sole discretion on whom to be appointed as Administrator. We owe that to the case of Williams v. Ogundipe where it was decided that appointments will be made based on the material facts put before the court.
Certainly, you can see how this could go wrong. In case you can’t we’ll spell it out, the estate of the deceased could fall into the wrong hands.
To prevent this, the law created an order for determining those who are entitled to be appointed as Administrators where an asset owner dies without making a Will. Section 49(1) of the Administration of Estates Law of Lagos lists the order as follow:
- Husband or wife of the deceased
- Children of the deceased
- Father or mother of the deceased
- Brothers or sisters of the deceased
- Grand father and grandmother of the deceased
- Uncles and aunts of the deceased
- Creditors of the deceased
- Administrator General where none of the above people are available.
However, even this has a caveat for its application. The court has long held in Obusez v. Obusez that for this order of persons to apply, the deceased must have been married at the court registry. If this is not the case, then the order won’t apply and administration of the estate must be earned in court.
The risk created by Letters of Administration are therefore numerous.
(1) Conversion
Since the deceased did not create a Will naming his beneficiaries and spelling out expressly who should inherit what assets, the power of determining that will fall on the Administrator who might end up handing over the lion’s share of the assets to unintended beneficiaries.
(2) Delay
The process of obtaining Letters of Administration takes time. Factor in uncles or aunties or even siblings fighting over property and it can take A LOT of time. In the famous case of Ukeje v. Ukeje, it took the family 31 years to settle the issue of Letters of Administration before any of the beneficiaries could lay claim to the assets of the deceased.
(3) Loss of Assets
The Administrator is not the owner of the assets but merely the person empowered by the court to distribute it. The implication of this is that an Administrator may not know the full extent of the deceased’s properties. This may be dangerous in countries like Nigeria where people sometimes acquire assets without telling anyone about it. Such assets will be lost because no one will know about its existence.
(4) Rigors and Repetition of Process
Letters of Administration can only be used to lawfully administer assets listed in it. If it is discovered that the deceased had assets under possession that aren’t listed in the Letters of Administration, then the applicants will need to repeat the long arduous process all over again.
To put it in perspective, the process will have to be repeated each time a new asset not covered by the last Letters of Administration is found.
(5) Application of Customary Law
The Administrator in distributing the assets of the deceased will be guided by the customary law of the deceased since he did not make a Will. The problem with this is that this is an easy way for your loved ones to not get what you intended for them. The customs of the deceased may favor a distant relative over a child. For example, in some parts of Nigeria, a male uncle will get more share than a wife or daughter of the deceased.
HOW TO PROTECT ONESELF AGAINST THE RISK INHERENT IN LETTERS OF ADMINISTRATION
As you can see from the previous sections, there’s quite a bit that could go awry.
The only way to truly guide against the risk inherent in Letters of Administration is by making a Will. Letters of Administration become unnecessary when a person makes a Will.
Making a Will is not a death wish. It is not a bad omen. It is the wisest estate planning decision a person can take to secure their assets for the benefits of their loved ones. A Will allows you to choose the person to distribute your property. It allows you to choose your beneficiaries and what each person will get. It prevents un-intended persons from inheriting your property. It ensures all your assets are identified and accounted for. It prevents delay and frustration of your loved ones when trying to access your assets.
It is not a decision to procrastinate.
Make a Will today and secure your loved ones.
NB: For more details on securing your assets, visit UTL Trust Management Services Limited at https://utltrustees.com/our-services/trust-services/private-trust/trust-administration/.
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