One Will to Rule All Assets, Inter-State and Foreign Ones Inclusive

That investment. That status symbol.

For whatever reason, it is not unheard of for people to hold assets (such as landed properties, bank accounts and so on) outside their state or country of residence.

As can be imagined, such asset owners must face important legal questions. For instance, does a Will made in one state or country protect assets in other states or countries? Similarly, can such a Will ensure disposition to intended beneficiaries when the owner passes on?

The short answer to both questions is yes, but as with any legal question, proper procedure must be followed to ensure that nuances are accounted for.

Here, we will take a look at factors to consider towards forestalling issues associated with administering Wills comprising inter-state or foreign assets.

A NOT-SO-LITTLE THING CALLED PROBATE

The first typical step in administering the Will of a Testator upon their demise is to apply for probate.

Let us explain!

Probate is the authority of a state, which validates a Will and empowers the named executors to act. In the judicial matter of Nsefik v Muna, the court held that ‘probate’ is the procedure by which a testamentary document is established to be valid.

For those familiar with a Certificate of Occupancy, probate has a somewhat similar effect. When a person purchases a parcel of land, they obtain a Deed of Assignment from the seller. Even with the Deed of Assignment in hand, the buyer still has to register the associated details in the state’s Lands Registry. After these details have been entered into the Registry, the landowner is given a Certificate of Occupancy which is essentially the state’s recognition of the buyer’s right and authority over the registered land.

In essence, probate is the state’s recognition and validation of a Will and the executors named in the Will.

The process of obtaining probate begins with an official writing from the executors to the Probate Registrar, informing the latter of the Testator’s demise. The Probate Registrar will then request the attendance of persons (friends or family) likely to be interested in the Will at an appointed date, time and place. On the fixed date, the Probate Registrar unveils the Will (which would have been lodged in the probate registry when the Testator was alive), breaking the sealed wax on the Will and reading it in the presence of all while making a recording of the proceedings.

What happens after this?

The Executor(s) will then apply for probate, making probate payments and filling relevant forms including:

1. An application letter for probate;
2. A death certificate of the deceased;
3. A declaration of oath by the executors stating that they will faithfully administer the estate; and
4. An inventory listing the properties (among other documentation).

If the Registrar is satisfied with compliance in the above regard, probate should be granted, all should be well, and everybody should live happily ever after.

Wait a minute. Apparently, it is not so simple.

The snag is that when items bound by a Will are located in different geographical regions, a process called ‘resealing’ needs to take place.

WHAT IS RESEALING, AND HOW CAN THERE BE HAPPILY EVER AFTER?

Probate is usually granted only in respect of properties within the state where it is obtained, but the reality of modern asset ownership is that many people have assets outside their states or country of domicile. What then can be done to ‘extend’ probate such that it covers other assets?

To the law books!

Section 2 of the Probates Re-Sealing Act of 2004 provides that:

Where the High Court of a state has granted probate in respect of the Estate of a deceased person, the probate once produced, with a copy deposited at the High court of any other state, may be resealed with the seal of that court.

The above provision applies to any probate granted or sought to be ‘resealed’ in any commonwealth country.

Probate ‘resealed’ by the High court of a state or relevant jurisdiction has like force and effect as if originally granted by the competent court of that state. The property in the resealing jurisdiction can then be administered by the Executor(s) of the deceased person’s Estate. The resealing is completed when the Registrar of the resealing court sends a notice to the Registrar of the court where the original grant of probate was made.

Though this sounds as easy as ABC, certain requirements must be fulfilled before probate can be resealed by the High court of a state. Order 58, Rule 26 of the High Court of Lagos State (Civil Procedure) Rules and Order 49, Rule 55 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules set out the conditions for resealing in Nigeria.

1. First, the probate fees of the inter-state asset must have been paid to the resealing state.
2. Next, a Tax Clearance Certificate must be supplied, as well as evidence establishing the domicile of the Testator during their lifetime.
3. Finally, the probate judge may also order an advertisement in the resealing state.

Where these conditions are satisfied, the probate can and will be resealed.

Naturally, the most important grease to this mix is the availability of professional expertise in navigating the rewarding but intricate world of Wills.

Do you want to eliminate confusion surrounding any and all of your assets?

 

HB: For more details on administration of a Will, visit UTL Trust Management Services Limited here