On the 26th of November 2016, I lost a dear client. Her death brought so much pain that only time could heal. She was not just a client but friend and mother. No words could express what I felt. She was a legacy, she was one jolly good fellow, passionate about people and has affected so many lives in good ways. Her life was a blessing, her memory a treasure. I will miss you beyond measures……Adieus dear DR. CHARITY CHIKODI IRIOBE (PHD).
Considering the fact that death is inevitable, I am compelled to write about the subject matter TRANSFERRING TITLE IN LANDED PROPERTY ON THE DEATH OF ITS OWNER.
Some times last year, in October 2016, I wrote an article on Will. Therein, I defined a Will as an instrument of conveyance, a legal document by which a person (the testator), expresses his or her wishes as to how his or her property is to be distributed at death, and state one or more persons (the executors/trustees), to administer the Estate until it’s partitioned or shared. A Will is like an umbrella, it covers all kinds of property, all imaginable and unimaginable assets such as copyright, patent, Right to trade mark, movable and immovable property.
When someone dies, there are so many things to fashion out. I often receive enquiries via emails and phone calls about how the title in a property owned by the deceased could be transferred to the Deceased beneficiaries or survivors. Generally, a Will is made to transfer property(ies) to named heirs after death. A Will appoint executors who are granted power by a probate court to carry out the deceased last wishes. In some cases, a testator might die leaving a Will and yet without any executor therein while in other cases, a testator might die without leaving a Will. I will be discussing in all these instances above how title can be transferred to beneficiaries stated in a Will.
The law which regulates the Estates of a deceased person is the Administration of Estates Laws of each states of the Federation of Nigeria, while the procedure for the grant of the right to administer the estate of deceased persons is governed by High Court (Civil Procedure) Rules of each state of the Federation.
Accordingly, before any individual can legally exercise any right on the real and personal estate of a deceased person in law, he or she must have been granted the Probate or Letter of Administration of the deceased estate.
Before we go further, I would want you to know what a probate means.
A Probate is the legal authority granted to an executor of a Will to administer the estate of the testator after the Will has been proved and certified by the Probate Court as the authentic Will of the testator.
There are three classes of grant of authority to administer the estate of a deceased person. These are:
- GRANT OF PROBATE
- GRANT OF LETTER OF ADMINISTRATION WITH WILL
- GRANT OF LETTER OF ADMINISTRATION WITHOUT WILL
A Grant of Probate is where the deceased dies testate, leaving a valid Will with the executors appointed in the Will to carry out the wishes of the testator.
A GRANT OF LETTER OF ADMINISTRATION WITH WILL is where the deceased person dies testate but without appointing executors; or the appointed executors are late; or the executors are infant; or the executors have renounced probate.
A GRANT OF LETTER OF ADMINISTRATION WITHOUT WILL is where the deceased person died intestate (without a Will) and so could not appoint an executor(s).
As stated earlier, before title or Rights can be passed, certain procedures must be followed. Where there is a Will made by a deceased person otherwise known as a “TESTATOR” the property vests in the persons so mentioned and stated in the Will. The Will must have been lodged in the Probate Registry before the pass on of the Testator. The estate however does not automatically vests in them until when the Trustees and Executors in the said Will have executed a Deed of Assent. See Section 40 of Admistration of Estates Law of Lagos State. It should be noted as well that the Executors and Trustees of the Will are to obtain what in law is referred to as “Letter of Administration with Will” or “Grant of Probate’’ before such powers can be exercised by them.
Finally, the translation of the clauses as reflected on the face of the Will determines the share of the beneficiaries and or survivors as stated therein.
WHERE THERE IS NO WILL
Such person is referred to in law as “INTESTATOR”. Usually, a family meeting is held to appoint trustworthy adults to act as the administrators and trustees of the deceased’s estate. It is those appointed that shall approach the Probate Registry to process a “Letter of Administration without Will”. Such a document upon completion will give the right to deal with the estate and pass title to the possessor or custodian of same.
Most people have the notion that a Will automatically conveys Title to the heirs or beneficiaries mentioned in it. This is a wrong notion to have especially when the transfer of title has to do with land/ landed property. If you follow through this article, I stated that the estate does not automatically vests in them until when the Trustees and Executors in the said Will have executed a Deed of Assent.
What is a Deed of Assent? In a normal circumstance, what is meant by a document of title are; Certificate of Occupancy; Deed of assignment; Deed of conveyance etc. this is however not the case when it comes to conveyance of Title of a landed property in a Will.
According to Kehinde Adegbite on “How to write your will with ease” A will is not a document that clothes a beneficiary with legal ownership over his gift but another document does that. This other document is called a Deed of Assent. A will itself is just a legal document that expresses how the testator wants his assets shared. It does not confer title (ownership) on the beneficiary.
A Deed of Assent in probate, is necessary to transfer a property from the name of a deceased person to the intended heir. A Deed of Assent transfers the property/title of a deceased person to the survivors or beneficiaries that have been named in a Will through the Executors or administrators of the said Will. The title cannot however vest in the beneficiary except the Deed of Assent is executed which must be signed by all the Executors thereto. Upon the due execution of the deed of assent, no third party can lay claim to the property(ies) because it is deemed that the title to the property(ies) have been duly passed to the right beneficiary.
On a concluding note, it is vital to know that a Will, although very important, is just a document that shows how the deceased want his property to be shared. It does not confer title or ownership to the heirs or beneficiaries to a Will. A Deed of Assent does the transfer of title.
For further assistance, explanation, or consultation on this subject matter or any other land/property related issues, do not hesitate to contact me via [email protected] or Call 08034869295.
This post first appeared on LAND ISSUES THAT CAN GET YOU INTO BIG TROUBLE PT 2, please read the originial post: here
