Property state of mind

WHO HAS THE RIGHT TO TRANSFER A DECEASED’S ESTATE

When a person dies, their properties especially real estate is usually inherited according
to the laws governing succession and inheritance. Most persons are confused as to
whom to deal with when it concerns the purchase of any real estate of a dead person.
Some persons have unluckily dealt with the wrong persons which led to protracted legal
battles. I had an experience some time ago when my client wanted to buy landed
property from a boy who inherited same from his late father. As customary, I requested
to see the title document in order to conduct my due diligence. To my utter surprise, the
boy handed to me a deed of gift between him and his late father which was execute two
years after his father’s death. Surprised, aren’t you? Your guess is as good as mine.
The deed of gift was certainly forged. Even though this boy is entitled to the property as
the only child of his late father, I figured out that he was ignorant of what to do to have
that legal authority to sell the property. Off course I helped him!
In Nigeria, inheritance and succession of a deceased person’s estate depends on
whether the individual died intestate (without a valid will) or testate (with a valid will).
Where a person dies testate, his property would be administered according to the
content of the Will. But if he dies intestate, inheritance will be governed by the laws of
religion or indigenous belief/customary law and practice of the deceased.
The factor that determines which system of law that will apply to a deceased estate is
the type of marriage contracted by the deceased while alive. If he contracted statutory
marriage, the statutes of the state or country would apply. If he contracted customary
marriage, customary law and tradition would apply.
If a deceased person left a valid Will, the person who deals with the estate or lawfully
permitted to sell the real estate is called the ‘Executor or Executrix’. If the deceased
person left an invalid Will or died without a Will, the person who is lawfully permitted to
sell the deceased property is an ‘Administrator’.
Upon the death of a person with a valid Will, the Executor or Executrix may have to
apply to the High Court of Justice for a grant of representation to gain access to his
property. This application is made to the Probate Registry Division of the High Court.
The grant of probate bestows authority on such Executor or Executrix to administer the
Will which may include selling any real estate of the deceased.
Upon the death of a person without a valid will, the Administrator will have to apply to
the High Court of Justice or Customary Court depending on whether the deceased
contracted statutory or customary marriage. Where the deceased contracted statutory
marriage, the Administrator will have to apply to the High Court of Justice for grant of
letters of administration. This application is also made to the Probate Registry. The grant
of letters of administration clothes the Administrator with the power to dispose the real
estate of the deceased. However, if the marriage is a customary marriage, the
Administrator will have to apply to the relevant customary court.
An Executor or Executrix can be any body appointed by the deceased person to
administer the deceased estate in accordance with the provisions set forth in the last
Will and Testament of the deceased.
An Administrator or personal representative is a person appointed by the court to
administer the estate of an intestate deceased. The Administration of Estate Laws in
most states of Nigeria, laid down the persons who can apply to the court for letter of
administration in order of priority and where they are of equal priority, the court has
discretion to select anyone it believes is most suitable. These persons are generally
called Next-of-Kin and the hierarchy is as follows:
1. Surviving spouse(s) of the deceased.
2. Children of the deceased.
3. Parents of the deceased
4. Brothers or sisters of the deceased of full blood or children of such brother or
sister who died in the life time of the deceased.
5. Brothers or sisters of the deceased of half blood or children of such brother or
sister who died in the life time of the deceased.
6. Grandparents of the deceased.
7. Uncles and aunts of full blood or their children.

From the above, it is imperative to conclude that any person who wishes to buy the real
estate of a dead person must buy from the Executor/Executrix or Administrator as
explained above. It is further mandatory to ensure that such probate or letters of
administration granted by the court is registered at the state ministry of lands and
survey.

Living Sokarite Davies is a Property Advisor who writes from Port Harcourt and Lekki,
Lagos State.