What happens if you die without a Will?


I cringe whenever I hear that a person (especially a man) dies without leaving a Will, especially where the individual has a family and young dependants.Your will lets you decide what happens to your money, property and possessions after your death.When a person who was married with children dies intestate (without a will) then difficult questions arise. Who are the beneficiaries entitled to the deceased’s property? Should the estate be distributed according to Customary Law or received English Law. These questions sometimes cause the members of the family to engage in a bitter dispute which may result in litigation.

NOTE: If you die without a will, the law says who gets what!!!

The purpose of intestate succession procedure is to distribute the deceased’s assets in a manner that closely represents how the average person would have designed his or her estate plan, had that person prepared a will prior to his death. However, this default can differ dramatically from what the person really would have wanted. Even where it is known what the person intended, no exceptions are made where no valid will exists. Nor are there any exceptions made based on need or special circumstances.

In the Nigerian situation, where a man dies without a will, but married under the
English law, the family members may apply for the letters of administration. The wife and one or two grown up children of the man who dies intestate are the family members qualified to apply for the letters of administration.  But where there is no wife or grown up children, then the siblings of the late man can apply. The application will be made to the High Court of the state where the property is located, and it will be issued in the names of those who applied for it.

Section 49(1) of the Administration of Estates Law states that, the estate of a person who died intestate shall be distributed in the following manner; the surviving husband or wife shall take the personal chattels absolutely and in addition the estate (excluding personal chattels) shall be charged with the payment of a net sum of money equivalent to the value of one third  of the estate, free of funeral expenses, to the surviving husband or wife plus interest from the date of death at the rate of 2½ % per annum until paid or appropriated and subject to providing for that sum the estate (excluding personal chattels) shall be held as follows; (a) one-third upon trust for the surviving husband or wife during his or her lifetime and subject to such life interest, on the statutory trusts for the children of the deceased; and (b) two thirds on the statutory trusts for the children of the deceased.

Section 36(1) of the Marriage Act states that, where any person who is subject to customary law contracts a marriage in accordance with the provisions of this Act and such person dies intestate leaving a widow or husband or any children of the marriage, the real and personal property of such person which might have disposed by will, shall be distributed in accordance with the provisions of the Laws of England relating to succession of estates, notwithstanding any contrary customary law.

To avoid the type of family dispute and the kind of litigation examined in this piece, it is advisable to consult a lawyer and prepare a will so that one does not pass on intestate leave behind problems for the family.



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