In Nigeria, many people shy away from writing a Will either because they think it is inviting death, or they feel their estate is small, or they assume their family will know what to do after their demise.
Unfortunately, when someone dies without a Will which is known as dying intestate, it can lead to confusion, family disputes, and even court battles.
In this article, we will explain what happens under Nigerian law when there is no Will, the process of sharing the Estate, and real court cases to illustrate how the law works.
What is dying Intestate? A person is said to have died intestate if they die without leaving a valid Will to guide the distribution of their property. I underlined Valid Will because the Will left behind must fulfill all the requirements of the Law for it to be considered valid otherwise the Will will be discarded and the deceased property shared as if he died intestate. When this happens, the law decides who gets what, not the deceased.
The law that governs how an Estate is distributed when there is no Will depends on the type of marriage the deceased had. If it is any of the underlisted marriages here are the Laws that guides the distribution of the Estate
- Statutory Marriage (Marriage under the Act): It is governed by the Administration of Estates Law of each State of Nigeria and the English common law principles. This applies if the deceased married in a Marriage Registry, church, or mosque under the Marriage Act.
- Customary Marriage: it is governed by customary law of the deceased’s ethnic group.
- Islamic Marriage: it is governed by Islamic law (Sharia), especially in Northern states.
Process of Distributing the Estate Without a Will
- Appointment of an Administrator: the Administrator can be any of the following Surviving spouse, Children, Parents, Brothers/sisters, Creditors (if any). Since there is no Will naming executors, the family must apply to the Probate Registry for Letters of Administration. In the case of Adesubokan v. Yinusa (1971) 1 All NLR 225 – The court confirmed that administrators are appointed in order of priority as listed above to protect the Estate.
- Identifying the Estate: After appointing the Administrator, they will go ahead to identify the properties and belongings of the deceased person like: Land and buildings, Bank accounts, Vehicles, shares, and investments, Personal property.
- Payment of Debts and Taxes and distribution of the Estate
Read: HOW TO OBTAIN LETTERS OF ADMINISTRATION IN RIVERS STATE NIGERIA
The mode of distribution depends on the type of marriage and the applicable law. In a statutory marriage the spouse and the children share the property according to the Administration of Estate Law of the state. Where there is no spouse, then only the children inherit everything. If there is no child of the marriage then the spouse takes all, where there is no spouse or children then the parents of the deceased or the siblings or other extended family inherit the property of the deceased.
Under Customary Law, the distribution is based on the ethnic group of the deceased. Each ethnic group has its own rules, example in Igbo custom Property may be inherited by the eldest son (Okpala), who then redistributes among male children. In a polygamous family in Igbo custom, properties are distributed according to the different kitchen. In the case of Nezianya v. Okagbue (1963) 1 All NLR 352 – Under Igbo custom, a widow could occupy her husband’s property but did not inherit it outright. In Yoruba custom distribution is per stirpes children take shares according to their mothers’ “houses.”
Under the Islamic Law, distribution is strictly by the Qur’an (Surah An-Nisa 4:11–12). Distribution is overseen by an Islamic court.
In conclusion, the law has rules for when someone dies intestate, but those rules may not reflect your personal wishes. A simple Will can protect your family from unnecessary hardship such as Family disputes, delay in accessing your assets, mismanagement by the Administrators and unfair distribution of your property.
Read also:HOW TO WRITE A WILL IN NIGERIA
If you die without a Will, the law not you will decide how your property is shared. Your type of marriage determines whether statutory, customary, or Islamic law applies. The Letters of Administration are required before anyone can legally manage your estate. Writing a Will can save your family years of stress, cost, and conflict.
If you have assets like; land, money, business, shares, etc. it is wise to make a valid Will while you are still alive. Keep your property documents safe and accessible and please do well to inform your spouse or trusted relative about your assets.
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