PERSONAL REPRESENTATIVES

Question 1

Who are personal representatives?

Answer 1

They are persons upon whom the estate of the deceased is vested. These include Executors or Administrators

Question 2

What are the 5 modes of appointing a personal representative?

Answer 2

1. Express
2. By implication
3. By operation of law
4. By the court
5. By power of appointment

Question 3

How is a personal representative made expressly?

Answer 3

If the testator executes in his will

Question 4

How is a personal representative made by implication?

Answer 4

If the testator names a person in his will to perform some duty

Question 5

How is a personal representative made by operation of law?

Answer 5

This happens upon the death of executor(s) and the executor named in the will of the now deceased executor gets to administer both estates

Question 6

Who is property vested in when a person dies intestate?

Answer 6

Vested on the chief judge of the state, where he died until the grant of letters of administration

Question 7

How is a personal representative appointed by court?

Answer 7

Where the executor is appointed by the court

Question 8

How is a personal representative appointed by the power of appointment?

Answer 8

Where the testator nominates a person in his will to appoint an executor
The testator may or may not provide guidelines on how such nomination should be made

Question 9

What is the minimum number of executors?

Answer 9

The law does not stipulate any minimum number of executors to be appointed .
The testator may appoint a sole executor

Question 10

What happens where the testator appoints more than four executors

Answer 10

Probate will only be granted to the first four executors named

Question 11

In what circumstances will the court appoint an additional executor where the testator appointed a sole executor?

Answer 11

i. Where the sole executor is an infant
ii. If a minority is a beneficiary under the will
iii. If there is a life interest under the will
iv. If the sole executor is also made a trustee under the will

Question 12

What is the exception to the appointment of an additional executor in the 4 specific circumstances ?

Answer 12

If the sole executor is a trust corporation

Question 13

What is the general rule about remuneration of personal representatives?

Answer 13

General rule is that services rendered by the personal representatives are gratuitous,and as such, there is no remuneration for services rendered or time spent in administering the estate.

Question 14

When is a personal representative entitled to remuneration?

Answer 14

i. Entitled to be reimbursed for out-of-pocket expenses incurred in the course of performing his duties
Re Gates

ii. Where a charging clause is expressly provided for in a will
NBA v Koku

iii. Where he does litigious work for the estate, he is entitled to his professional fees, provided the fees are not inflated as a result of his position both as a personal representative and solicitor
Cradock v Piper

Question 15

List the powers and rights of personal representatives

Answer 15

1. Power to sue on behalf of the estate
2. Power to sell, lease, mortgage or transfer property
3. Power to run the business of the testator as a going concern
4. Power to postpone distribution of the estate ( distribution can be postponed for a period not exceeding 1 year)
   S.47 Administration of Estates Law of Lagos State
5. Power to appropriate any part of the assets in the estate
6. Power to appoint trustees for infant beneficiaries
7. Power to delegate

Question 16

If there is more than one executor, does the act of one bind the other?

Answer 16

General rule is that where there are multiple executors, their powers are joint and several, thus the acts of one binds the other(s)

Question 17

What is the exception to the act of one executor binding the rest?

Answer 17

In dealing with realty, no executor or administrator has power to sell without the concurrence of all the others
S.4(2) Administration of Estates Law of Lagos State
Ojomo v Ibrahim

Question 18

What are the duties of personal representatives?

Answer 18

1. Duty to prove the will
2. Duty to collect and gather assets of the deceased
3. Duty to make full inventory of the estate
4. Duty to pay all debts and liabilities of the deceased
5. Duty to distribute the estate among the beneficiaries
6. Duty to keep account
7. Duty to act in good faith

Question 19

What are the liabilities of personal representatives?

Answer 19

i. Liability for waste and conversion
ii. Liability to pay inheritance and other estate taxes
iii. Liability to be cited to take up probate
iv. Liability for intermeddling

Question 20

What possible defences can a personal representative have to the above stated liabilities?

Answer 20

The court may grant relief from liability if his action is honest and reasonable.

He may also plead limitation of action if the claim is brought by a creditor after 6 years of distribution, or by a beneficiary after 12 years of distribution

Question 21

When are executors/administrators in Lagos expected to file an account with the court?

Answer 21

Every 12 months from the date of grant until the completion of the administration

S.14 Administration of Estates Law of Lagos state

Question 22

When are executors/administrators in Abuja expected to file an account with the court?

Answer 22

It is done whenever the court orders the personal representative to do so.

Question 23

What are the accounts to be kept by personal representatives?

Answer 23

i. An Inventory
ii. An account of the administration
iii. The vouchers in the hands of the personal representative
iv. A verifying affidavit