Administering the Estate of a Deceased Person
This article will use some technical legal terms, and so it is important that you understand the meanings of the terms, where possible we will try to use plain English so as not to confuse you.
Testate – this is when a person makes a valid Will before their death.
Intestate – this is when a person does not make a Will before their death or made a Will that turns out to be invalid.
Executor– someone named in a will as responsible for sorting out the deceased person’s estate.
Testator – a person who has written and executed a last will and testament that is in effect at the time of his/her death.
When a person dies, it is either the person dies testate or intestate. The Probate Registry, under the supervision of the High Court, has the exclusive jurisdiction to issue grants of probate and letters of administration in respect of the estate of someone who has passed away.
There are basically three types of grants in administration of the estate of a deceased, and they are as follows:
- Grant of Probate (Will + Executors): this is granted where the deceased died testate, leaving a valid Will with executors who are willing, capable and available to act validly appointed under the Will. Here the executors have been appointed under the Will. The main concern of the court is to grant probate to the executors named in the Will to administer the estate.
- Grant of Administration with Will annexed: Here, the deceased died testate (leaving a Will), but failed to appoint executors under the Will or the executors that were appointed in the Will renounce probate (they state that they do not want to be executors) or are incapable of applying for probate (incapacity or out of jurisdiction) or have long died or are infants etc. In such cases the court is concerned with the grant of letters of administration to persons who are interested in the estate to administer the estate of the testator.
- Grant of simple administration – this could arise where the deceased died without leaving a Will at all (total intestacy) or where some part of his estate is not covered by the Will and there is no residuary clause (partial intestacy) or where the Will is declared invalid.
Probate is obtained in the case of testate succession, while letters of administration is obtained with respect to intestate succession and testate succession in some instances. While it is possible to obtain letters of administration for testate succession, it is impossible to obtain probate for intestate succession.
It is important to note that even though an executor derives their powers from a Will, probate is the authority that validates such powers. Thus, probate confirms the power of the executor to act.
Have you recently lost a loved one and you need assistance with obtaining a Grant of Probate? Please send an email to firstname.lastname@example.org, and our team will be happy to put you in touch with a lawyer who can assist..
We hope you have found this information helpful. Please note that this information is provided for general informational purposes only and is not intended to be legal advice. Therefore, no lawyer-client relationship is formed nor should any such relationship be implied. It is not intended to substitute for the advice of a qualified lawyer. If you require legal advice, please consult with a qualified lawyer.