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Of Probates, Wills, Letters of Administration

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By Ravi Nanga

LAST week we examined wills.

This week we will look at the process involved in distributing the estate of a deceased person.

Whether the person left a will or not, upon death it will be necessary to deal with the property that has been left behind.

Upon the death of a person, the first step will be to determine whether the person left a will or not.

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In the event there is a will, it will be necessary to contact the executor of the will so that steps can be taken to probate the will and deal with the estate.

In the event there is no will, it will be necessary for the deceased’s next of kin to apply for Letters of Administration. In the case of Letters of Administration, the person applying is referred to as the administrator. The law prescribes who can apply for Letters of Administration and it is the deceased’s next of kin. The law also prescribes the priority of who can apply for Letters of Administration.

An executor or administrator is commonly referred to as a Legal Personal Representative, or LPR for short.

It will be necessary for the LPR to compile a full list of the deceased’s assets, both real estate and personal estate.

Once the list of assets is compiled, it is advisable that you retain the services of an attorney who will be able to file the necessary application for the estate.

The application will be prepared and filed in the Probate Registry of the High Court.

Once there are no queries and the application is in order, the Registrar will publish notice of the application in a daily newspaper.

This is necessary in order to give notice to persons in the event that a person has a better claim to the estate. For example, as we saw last week, a will could be revoked at any time, so that in the event someone possesses a later will, such a person can lodge a caveat objecting to the granting of the probate and seek to probate the later will. In the event someone applies for Letters of Administration, it gives a person who may have a will to come forward.

Once there is no objection to the granting of probate or Letters of Administration, the grant will be made, at which stage the LPR steps into the shoes of the deceased. It should be noted that in terms of legal fees, fees for probate matters, which includes Letters of Administration, are regulated and are scale fees, depending on the size of the estate. Accordingly, no matter which attorney applies for probate or Letters of Administration, the fees will be the same.

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Upon the grant of probate or Letters of Administration, the LPR must advertise for creditors to come forward, as before as estate can be administered, it is necessary to settle any debts that the deceased may have left behind. For example, in a will it states that the will shall be administered following the payment of all the testamentary expenses and debts of the estate. If there are debts to be paid off, there are rules that prescribe which assets can be sold and in what order, to pay off these debts.

Once the debts are paid off, it is necessary for the LPR to distribute the remaining assets of the estate. There is a misconception that the executor appointed under a will owns the estate, and is free to do as he chooses. That, as indicated, is a misconception, and is wrong. An executor owes the beneficiaries a fiduciary duty in order to ensure that the assets of the estate are dealt with in accordance with the will. The only instance where an executor is not bound to follow the provisions of the will is where there is a debt and it is necessary to sell assets in order to pay off those debts. Except for that instance, an executor must distribute the estate in accordance with the will. Upon the commencement of the distribution of the estate, the LPR must file accounts with the Probate Registry in order to account for the administration of the estate.

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Where there is a will, the assets are distributed in accordance with the contents of the will. Where there is no will, the assets are distributed in accordance with the law. If there is real estate, the LPR will need to transfer the property either in accordance with the will or on intestacy. In order to achieve that, the LPR will need to execute a Deed of Assent, vesting the property in the respective beneficiaries.

Similarly, where there are personal assets, the LPR will be required to distribute those personal assets as well, either in accordance with the will or in accordance with the law.

In the event the person entitled to apply for the estate is refusing to apply to administer the estate, the beneficiaries either under the will, or on intestacy, can compel him to apply to administer the estate, or to renounce entitlement to apply for the estate. Should the person renounce, the next person entitled can then apply. In the event the LPR refuses to distribute the estate, again the beneficiaries can compel him to distribute the estate.

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Accordingly, it should be noted that upon the death of a person who leaves property behind, it is necessary for the LPR to take steps in order to administer and distribute the assets. In the event the LPR refuses to act with dispatch, the beneficiaries of that estate can compel the LPR to act, and if he refuses to do so, he can be removed as the LPR.

Ravi Nanga is an attorney-at-law

[Please note that this article is intended only to provide general information on the topic being addressed and should not be taken as providing legal advice. In order to be properly advised it will be necessary for an attorney to examine the relevant documents and obtain the necessary instructions before properly advising as to rights and obligations]

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