COVID-19: Understanding Wills, Probate and Trustee’s Management
Bekeme Masade-Olowola (Host): Hello great citizens of Nigeria. This is Bekeme and you are listening to the Good Citizen Radio Show, the show is already two years old – did you know we have been on air for two years talking about value system reorientation and how you the citizens can be great leaders today, tomorrow and for the growth of Nigeria? The show is conceptualised by CSR-in-Action and is funded by ACT Foundation which is a grant making organisation established in 2016 to support local and regional non-profits working in the areas of health, education, entrepreneurship, and leadership. And of course, what we do is driving leadership across Nigeria.
I always say that apathy is a huge thing – you can’t just say that you are unconcerned about what is happening in Nigeria, you cannot pretend not to know about the challenges we have across the country, you cannot sit back and not do anything. I mean you can talk about it on social media, you can write letters to the authorities you can organise sessions for young people to learn and talk about what they can do and how they can avoid certain behaviours. There is a lot for us to do as citizens for this great country.
Today we would be talking about this period of COVID-19 and we are specifically looking at ‘Understanding Wills, Probate and Trustee Management’. Do you know that without a will your spouse or your children will not automatically inherit all your assets, they will be distributed according to rules laid down by the law, they would apply customary laws which are diverse across different cultures. So, if you come from a culture where they think women cannot inherit a deceased assets, then that’s it and if you come from a culture that says the man’s elder brother or the woman’s family as oppose to her kids gets a higher percentage of the deceased’s assets, then that’s what will happen. So, you should be in a position to determine what happens.
Latest statistics from the National Centre for Disease Control (NCDC) in Nigeria, as of 17 June shows that we have 17,735 confirmed cases of COVID-19 and as many as 496 deaths. Remember that we do not have testing capacity in some states and that some states are in denial, like Kogi state where a citizen came out to say I have COVID-19 and the government says you don’t and he says I went to Abuja and I got diagnosed.
Sometimes there are punitive actions against these people for speaking out and two entire communities are shut down and they say you cant move you can’t, you cant say hello to anybody because somebody spoke up to say I actually have the virus. I don’t know what they benefit by trying to shut people downand I am not supporting those who actually are making up numbers and diagnosing every single ailment as COVID-19. But it is also bad when you live in denial and do nothing to stop infections and for some areas where local people don’t have access to diagnosis, you say that you have no cases and you are not doing anything to support the people. So, basically what I am trying to say is that these numbers are highly conservative and there are also instances of infections where people never get to find out. So, if you are lucky – I mean if your immunity is high, you may have contracted the virus and be lucky enough not to show any of the symptoms but you could have transmitted to others.
So, we have to be very careful, we hear that there is a second wave and that people are dying more quickly from the virus and this is actually mirroring what happened in 1918, when the influenza that killed over 50 million people globally and they also had spikes in second and third waves, and I keep on saying to us that just because the government says you can move doesn’t mean that everything is fine. In fact you see that Lagos state rescinded its recommendation to open up schools and churches by the end of June because the governor can see the trend and its basically saying: look guys you have to take responsibility for yourselves and that is why we are also discussing this today because we also have to take responsibility for ourselves because the increasing number of deaths are alarming, saddening and are of due concern to the extent that it is affecting every cadre of our society.
We hear about the deaths of prominent people, we have heard about the deaths of the average person, we have heard about the deaths of neighbours, friends, cousins and it is not a joke. It is not in our imaginations, it is happening and in consideration of these facts, it is prudent to note that the demise of our loved ones, even as a result of covid-19 is inevitable. But when an individual who is a custodian of family resources or who is just a person who has acquired something dies, an uproar may ensue between next of kin, including brothers, mothers, sisters, children.
The death of a spouse as we have seen in the past can lead to all sorts of displacements, especially when it Is the death of a bread winner – typically the fathers. So, the father dies and you see standard of living drops considerably for the mothers and kids and if it is a woman who was self-sustaining even for her kids and for any loved one that she has left behind, especially when this planning doesn’t happen for eventuality or when you don’t even give information about any assets you may have, if you did not have those conversations with your loved ones and we have also seen in the past where financial institutions do not feel an obligation to report to the next of kin that they have savings with them, which I think that it is absolutely terrible when they do that even if the law makes no requirement for that to happen.
I think that moral conscience should make financial institutions like banks actually make people go to their customers loved ones and say ‘oh this is what they had’. I mean that is why we put next of kin on the banking forms that we fill on things like this but that doesn’t usually happen and this then usually causes conflicts and sufferings for those that are left behind by the deceased.
It is interesting to note that many people may seem to devote more time to planning a vacation, a car to buy, or even where to eat dinner than they do to estate planning—that is deciding who will inherit your assets when you’re gone. Although, we understand that it may not be as fun – I mean it is a very morbid thought, although, we all know that we are going to die but we don’t want to think about it and some people gets superstitious about it, but it has to happen. So, lets be pragmatic about it, it is something that you must do, people die suddenly. It Is not every time that people die like they die in the Bible, that they would call their sons and daughters, bless them and give them last words and take a last breath with dignity. Sadly today’s world isn’t like that, it always doesn’t happen like that because our families are constituted of different personalities, even though we sometime share common interests, because we are different in temperament, different levels of educations and have different vested interests; it doesn’t usually happen as straight forward in manner as possible, and these conflicts which sometimes last for years and enters into the next generation can be avoided if there is a legal plan in place to manage a persons estate. And it should not just be that there is a legal plan but that it is also available to family member, so that they can access it when the person has passed on and it doesn’t have to be complicated. You don’t want to leave unnecessary work complications and even cost for your family because it does sometimes become really expensive.
It Is a disservice to yourself and to your family members. We have seen cases like I said for the banks, where the government that gets to take over these assets that we worked hard for. So many people are coming to the realisation that when they pass on and they do nothing, they don’t have any control over their assests and if you are like me who is a planner, I will hate for this to happen, to not have been able to set this right, set a tone, set a structure for how people will take over from me when I am not there anymore. So, you should make sure that it doesn’t become a problem for your families when you have passed on.
There are many factors that ought to be taken into consideration when writing a will, it is important to take quality advise at this stage, otherwise we talk about all those things that we have talked about and please note that estate planning is not only for the rich. Don’t say ‘what do I even have?’ As long as you have a bank account, please have a plan. If you have a shark that is yours then have a plan, insurance companies are doing this thing for a dime these days, if you have a ring you want to pass on to your child, have a plan. It can be straight forward, it’s to protect your family especially with what one is facing today with COVID-19. I don’t wish it upon anybody, but like I said, death is inevitable and so this brings to mind the need for us to plan because we have seen so many sudden deaths and it will not be wise if we don’t do what we have to do.
We will be talking about how one can access or first of all helping us understand what Wills, Probate Services and Trustee Management is and then what we need to do, basically encouraging us to do the needful. So, our special guest on the show today to talk about what we have to do is Mr Akolade Owolabi who is an experienced legal luminary in probate matters. He has acted as consultant to several NGOs, Multinational Agencies and Institutions on inheritance and customary laws issues, probate matters and has advised high net worth clients on a wide range of assignments. He is a member of the Nigerian Bar Association (NBA), Section on Business Law, Chartered Institute of Arbitration (CIArb) and the Institute of Chartered Secretaries and Administrators of Nigeria (ICSAN). He is currently a director of some companies in Nigeria.
Welcome to the show Mr Akolade Owolabi.
Guest: Thank you for having me on the show
Host: Okay. So, can you please tell us what the simple difference between Wills, Probate and Trusteeship or Trustee Management is?
Guest: A will can be defined as a testamentary instrument or a document so to speak, voluntarily made by a person called the testator for the purpose of the distribution of his estates after his death to his listed beneficiaries by his appointed executors. It can also be said to be a documented intention of the testator that takes effect upon his death.
Probate on the other hand is a legal certification to validate a Will or I can call it an official copy of the will that is legally certified as genuine, and it is usually handed over to the executors. Permit me to go further, there are times that a deceased would not have written a Will before his demise. In such instance, the beneficiary or dependent of the deceased can always apply to the probate registry to obtain an official court order for the purpose of appointing someone as the administrator of the deceased estates. Now let us go further to the trust management concept. Trust Management is generally created by an individual, mostly called the grantor, Such an individual would have signed a trust agreement. In that agreement the grantor would have listed all the assets or properties that are to be governed by the terms under the trust agreement. Also, under the trust agreement, the grantor must have also listed or named a person or a legal entity or a company to be the trustee for the purpose of administering the trust.
The difference here, between a Will that has obtained probate which is the legal certification and a Trust agreement is that, for a Will to be acted upon, it must have obtained probate, whilst under the Trust management, the trust agreement must have been executed by both the grantor and the trustee and there would need for the trustee to register those assets in its name. It is upon such registration that the trustee would have the power to transfer legal right or legal title to the sole named beneficiaries in the trust agreement.
Host: Wow, so that is pretty interesting. What I have heard you say is basically that a Will is a documented intention of the testator, that is the person who wishes to give out assets, as to how they wish for their assets to be distributed upon their demise and that for a Will to be recognised legally, it has to go through probate. And that Trustee management is actually signed by both the testator and the person who would actually access it. So, basically it seems like the trustee management is a more thorough process to protect our loved ones.
Okay, lets proceed. As the number of infection and death rise from the COVID-19 pandemic, it is prudent for Nigerians to have adequate planning for their affairs, finances and property in the event of the unexpected. How would you advice our audience go about it? Are there cost effective, easy, flexible and quick options? And how best can they optimise usage of probate services and trustee management services in order to avoid family disputes?
Guest: Immediately a person starts acquiring asset or property it is important for such a person to start making plans in writing his Will, having said that as to which of the options is cost effective, flexible and fast, well, I am tempted to say that the trust agreement or the trust management concept appears to be faster for me because with the trust agreement, probate is not necessary and your trustee will be able to pass your asset unto your beneficiary without needing to wait for a court order.
As they say, probate is relatively slow but I may say that the system has improved and service delivery is now more efficient. Yes it is online and I must confess that It is user friendly. So you can go online and access the portal. Whether which one of them would avoid family dispute for me in terms of avoiding family disputes, depending on the quantum or the number of properties on ground to be shared and distributed amongst the beneficiaries, I would advice during the life time of the testator, that the testator should distribute the assets in his life time and endeavor to ensure legal transfer of those properties.
Host: Thank you for that. But I would have really liked to hear about more ways or particular ways via which people can access cost effective Trust management, Will management services and all of that and I have noticed that it seems the best planning tool is Trust and apparently there is the inter vivos Trust Management as well as the testamentary. Inter vivos means that it is a living Trust so people can access and make amendment to this trust whilst they are alive as oppose to the testamentary one which takes effect upon the persons demise, but then apparently with the Trust, you don’t need to then go through a court even though a Will is what validates a Trust.
So, you will still need a simple Will if your assets are simple to basically specify how you want your assets to be managed and online template are available to do this with. I am sure that there are ways that you can then domicile this so that it is accessible and use a lawyer to authorise it or a court system to authorise it thatsays this is valid and must be applied upon the persons demise. I also did mention that there are services being offered you know, side by side, such as insurance and pension schemes. So you should look into those. My next question will come after the break, lets take a break from the Good Citizen Radio Show and we will be right back.
Welcome to the Good Citizen Radio Show. We have been talking about Understanding Wills, Probate and Trustee Management and we have come to understand that the most effective is Trustee Management. It is a fantastic idea to write a Will. If that is what you want to do, please go ahead. You don’t want to leave your estates to just anybody, you don’t want your family to fight over it, and you don’t want them to spend too much. You also need too remember that you must use probate to validate your Will and on the show we have been talking to Akolade Owolabi who is an experienced legal luminary. Okay. So in Nigeria, the industrial court oversees adherence to commercial law. Is there legislation or a body in the country that guides and oversees probate issues? And if a loved one had no Will upon their demise, how can their dependents inherit without too much stress? Is there any portal or institution that they can go to find out what the deceased owned in their lifetime, whether cash, property or other effects?’
Guest: Yes, there are legislations and I am aware that there is a probate receding act of 1966 which is a federal legislation and the respective states in Nigeria also have their administrations of estate laws that governs probate activities in each of the respective states in Nigeria. They also have the high court civil procedure rules that governs and overseas probate issues in each of the respective states in Nigeria and where there are dependents who want to inherit the property of a deceased that died without Will, they would be advised to apply through the probate registry for a court order appointing someone as an administrator who would administer and distribute the properties and assets of the deceased.
On whether there is a portal or institution which they can access to find out whether a deceased has properties, well, I am not aware of any for now. If there is any, I would avail you but currently I am not aware of any portal where you can find out if a deceased has properties in his lifetime.
Host: Thank you for that. So, sadly there is no portal that can help you but I don’t think that you should despair if you are in a situation where you lost a loved one with no access to their Will. You can actually go through the probate registry to see how you can get recourse to property or other inheritance that may belong to you. Do not give up if you need it. If you don’t need it, it is not the end of the world either. Thank you so much for coming on the show.
Guest: It has really been a pleasure talking to you, thank you. Good evening.
Host: This is the Good Citizen Radio Show. Lets remember that we are still in the era of the COVID-19 pandemic and for the many people and businesses who are still suffering from the effects, lets try our best to contain ourselves in these times.
We have had so many incidences of domestic violence as a result of these pandemic and it is actually the internal day for the elimination of sexual violence in conflicts and so many communities in the extractives industries have been suffering really badly as a result of cultural structures, displacement and all of that. So let’s just be mindful that we are good citizens and we would do our best to abide by Nigeria. Thank you for listening to the Good Citizen Radio Show. We are here every Friday at 8pm on Inspiration 92.3. My name is Bekeme and the show is brought to you by CSR-in-Action.Thank you to our partners – the one and only ACT Foundation. Have a Good evening and bye.