D

Probate

Probate: An Overview

Introduction to Probate

  • Probate is a subject that carries one question in the Professional Practice paper, usually the last question.
  • For study purposes, consider administration as a whole, not just probate.
  • Includes probate and other types of estate administration.

Types of Estates

1. Testate Estate (Testacy)

  • There is a valid will.
  • There is a proving executor.

2. Intestacy

  • No will or no valid will.

3. Partial Intestacy

  • The deceased has left a will, but it does not completely dispose of the entire estate.
  • Example: Deceased has 10 acres of land and five houses but only disposes of five plots of land in the will.
  • The study focuses on how to distribute the assets not disposed of in the will.

Administration of an Estate

  • An administrator is needed to administer the estate of the deceased person.
  • Involves multiple steps and considerations.

Personal Representative (PR)

  • The PR can be an executor (in cases of a will) or an administrator (where there is no will or intestacy).

Duties of the PR

  1. Collect the Deceased's Estate

    • Gather all assets belonging to the deceased.

  2. Settle Debts

    • Pay off the debts and liabilities of the deceased, including funeral expenses.

  3. Distribute Assets

    • Distribute the remaining assets to the beneficiaries.

Distribution Based on Estate Type

Testate Estate

  • Distribute the assets according to the will.

Intestate Estate

  • Refer to the Distribution Act 1958 for guidance on distribution.
  • Exception: Distribute according to CGL (Consultative Group on Legislation) for mostly.

Partial Intestacy

  • Distribute assets according to the terms of the will for the property that has been specified.
  • For assets not disposed of in the will, follow the Distribution Act 1958.
  • Exception: Distribute according to CGL for mostly.

Definition of Estate

  • Estate refers to anything owned by the deceased person at the time of death.
  • Includes landed property (immovable) and movable property.
  • Also includes money and any other assets.
  • One can only give what they have, meaning the deceased must be the owner of the property at the time of death.
  • Example: If there is a house with outstanding loan payments, it cannot be transferred to the beneficiaries until the loan is settled.

Vesting

  • When a will or letter of administration is taken, apply for vesting at the land office or land registry.
  • Vesting involves registering the ownership to the PR.
  • The property is vested in the PR, but they are not the beneficial owner.
  • After vesting, the PR can transfer the property to the beneficiaries.

Jurisdiction

  • Jurisdiction can fall with the High Court, the Public Trust Corporation (Amanaraya, Bruhat, etc., under the Public Trust Corporation Act 1995), or the District Land Administrator.
  • Small estates can fall under the jurisdiction of the District Land Administrator, pursuant to Section 32 of the Small Estate Distribution Act.
  • The limit for small estates has been changed from 2,000,000 to 5,000,000.

Personal Representative (PR) Details

  • Represents the estate of the deceased.
  • If there is a will and a proving executor, the executor becomes the PR.
  • Otherwise, an administrator is appointed in cases of intestacy.
  • PR can be an executor, administrator, executrix, or administratrix.

Executor

  • A person named in the valid will; must be a proving executor.
  • The proving executor is able and willing to act and has the capacity to act.
  • Section 31 of the Probate and Admin Act is relevant.
  • Appointment can be express or implied (Section 32).
  • There can be multiple executors, but a maximum of four persons at any one time (Section 33).
  • A minor can be named as an executor but can only obtain the grant of probate when they reach the age of majority (18 years).
  • If the sole executor is a minor, the court can grant a letter of administration with will annexed to a guardian or another fit person until the minor can obtain the grant themselves (Section 20).
  • Section 7 provides when the rights of the executor complete or cease, for example if said executor dies before taking out the probate.

Administrators

  • Appointed when there is no valid will.
  • The court can appoint an administrator even if there is a will but no proving executor.
  • The grant will be made to a person the court deems fit, having regard to the person's interest in the estate (Section 16).
  • Section 30 provides for the persons who can apply for a letter of administration when there is no will.
  • If there is an infant beneficiary or a life interest under the will, the grant can only be given to a trust corporation or at least two individuals.
  • Under Section 31, a person granted a letter of administration has the same rights and liabilities as an executor.
  • Under Section 14, if representation has been granted to more than one executor or administrator, and one dies, the representation of the estate shall accrue to the surviving executors.

Chain of Executorship

  • Section 12.1 of the Probate and Admin Act deals with the chain of executorship.
  • The executor of the deceased executor can act for the estate of the original testator.

Rights, Duties, and Powers of the PR

Rights

  • The right to grant of representation.
  • The right to sue in respect of all causes of action that can survive the deceased.

Duties

  1. Collect the Estate

    • Cases: Rich Chapman, BB and B against yep Kalmoy.

  2. Administer the Estate

    • Exercise due care in administering the estate, especially if there are infant beneficiaries.
    • Do not prejudice their interest.

  3. Pay All liabilities and Debts

    • Inquire what are the debts of the disease.
    • Section 67.1(a) of administration of administration act.

  4. Distribution

    • Consider the beneficiaries' interests and benefits.
    • Act with a high sense of detachment and impartially.

  5. Give Accounts

    • Prepare a set of accounts and complete the administration.

Powers

  • Section 60: Dispose of the property.
  • If there are several PRs, one can exercise the power of the other in the absence.
  • The court can direct the PR, e.g., allowing only one PR to sell the property.
  • Trustees Act 1949 can come into play.
  • The act defined a trustee to include personal representative.
  • Sections 4, 6, and 9 of the act can be relevant.

Jurisdiction in Distribution

  • Factors determining jurisdiction:
    • Testate or intestate
    • Movable or immovable property
    • Value of the estate

Testate Estate

  • Generally, jurisdiction to grant the letter of representation is with the High Court.
  • Whether the executor name is approving or is not does note matter.
  • If there is approbin executor the high court wil grant the probate.
  • If not then letter of administration with annexed.
  • Power of the court to grant letter of representation under section 24F High Court either grant the probate or administration or diseases or revoke it. Under Article 17 of the public trust the coorperation, You look ar ARB that is it. Whole state movable property not applied o High Court.

ARB

  • Section 17 of the Public Trust Cooperation Act: A person must have a will, the property must be movable, and the value of the property must meet certain limitations. No application has been made to the High Court for a grant of probate.

Intestacy

  • Falls under section 32 of CEDA section act by the, District Land Administrator for wholly or partly movable must have land at one time. The limit of 2,000,000 has now been changed to and exclusive jurisdiction is District Land Administration persuant to section 4 of our seat.

Types of Grants

Purpose of Grant

  • Necessary to have the authority to deal with he deceased property. For protection of the PR according under article 64. Once the estate dies the estate will rest in the exectuor.
  • Authority from the bill can prove title with with. But the letter can only be vested after it has been granted.
  • section 39: It gives ARB 82 or it with you have to apply to to name. And if you and and it has to wait to get the vested right. Find the case against properties the beneficiary has any interest in the property until you get the letter of distribution and has to follow the provision undere Act.

When Grant is not needed

  • When the property come to an under the, summary administration that under the article 17 administration of the public. Tution is by your district administrator.
  • Nomination place EPF automatically go for nomination. Do you need that?

Grant of Probate

  • Means that there is a valid will and the proofing executor willing to take responsibility of this action this is what will follow under 1. It's not in place.
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Letter of Administration with Annex

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Will's Act

  • A person should have a mentally sound and ability to do things. Section 4: If a person who had left will they.
  • How to do it it must be in writing and can be in the presence of two others or at is direct it should be an tested.
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  • And there and and. When the is of and where is the of. the there be.
  • Hiro to want to know under Section 12 a will, automatically revoked by the mere, contract.

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