An Overview of the General Workings of Ideal Probate Registries Vis-a-Vis the Comparative Analysis of Probate Registries in Other Common Jurisdictions

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  • Topic: Probate, Inheritance, Common law
  • Pages : 26 (9116 words )
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  • Published : December 8, 2010
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AN OVERVIEW OF THE GENERAL WORKINGS OF IDEAL PROBATE REGISTRIES VIS-A-VIS THE COMPARATIVE ANALYSIS OF PROBATE REGISTRIES IN OTHER COMMON JURISDICTIONS BY IHENETU-GEOFFREY CHINEDU

1. INTRODUCTION A. B. C. D. E. WHAT IS PROBATE HISTORY OF PROBATE COURTS REASONS FOR A PROBATE REGISTRY OPENING OF A PROBATE CASE JURISDICTION

2. ROLES OF A PROBATE REGISTRY 3. OFFICERS OF THE PROBATE REGISTRY AND THEIR DUTIES A. PROBATE JUDGE B. PROBATE REFEREES C. EXECUTORS OR ADMINSTRATORS D. SURVEYOR E. GUARDIAN 4. PROBATE COURT PERSONNEL AND THEIR RESPONSIBILITIES COURT CLERK COURT INVESTIGATOR

5. MATTERS THAT CAN BE CONSIDERED BEFORE A PROBATE COURT 6. FUNCTIONS OF A PROBATE REGISTRY

7. COMPARATIVE ANALYSIS OF THE STRUCTURAL FRAMEWORK OF PROBATE REGISTRIES IN SEVERAL COMMON LAW JURISDICTIONS A. COMMONWEALTH COUNTRIES B. UNITED STATES C. AUSTRALIA 8. BASIC REFORMS/STANDARDS/RECOMMENDATIONS REQUIRED TO PROPERLY REVAMP THE PROBATE COURT SYSTEM IN NIGERIA 9. CONCLUSION

1. INTRODUCTION The Probate Registries are efficient channels of dispensing justice in matters of testamentary instruments such as wills or estates. The Probate Registries have daunting challenges that needs to be addressed expediently, ranging from administrative problems, incessant delays, perversion of justice et al. This paper expounds the general workings of ideal probate registries vis-a-vis a comparative analysis of probate registries within common law jurisdictions with their peculiarities. Also, special recommendations would be proffered in a bid to structural revamp the Probate Registries in Nigerian Courts. A. WHAT IS PROBATE? Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person's property under the valid will. A surrogate court decides the validity of a testator's will. Probate is the official sanction of the Court upon a testamentary instrument (e.g. Will) so as to authorise an executor to administer the Estate as personal representative of the deceased. Although a Grant of Probate is a grant by the Court, in ordinary non-contentious matters where no doubt is cast upon the validity of the Will, the matter does not usually come before the Court but is disposed of by the Registrar who merely requires a number of formal affidavits . A probate interprets the instructions of the deceased, decides the executor as the personal representative of the estate, and adjudicates the interests of heirs and other parties who may have claims against the estate.1 It may be seen as the legal process of settling the estate of a deceased person and distributing the deceased’s assets (not just property) under their Will or in accordance with the rules of intestacy if there is no Will. This may frequently involve selling a house or a flat so that the proceeds can be distributed to the beneficiaries.2

B. HISTORY OF PROBATE COURTS Although individual cases involving wills, decedents' estates, trusts, guardianships, and conservatorships—traditionally, matters within the jurisdiction of courts exercising probate jurisdiction— have garnered considerable public and professional attention, relatively little is known about the administration, operation, and performance of courts with probate jurisdiction. Unlike other types of courts (e.g., criminal courts), the evolution of such courts has differed considerably from state to state. In England, probate court jurisdiction began in the separate ecclesiastical courts and the courts of chancery. The early probate courts in America exercised equity jurisdiction. Modern counterparts of these equity courts are chancery, surrogate, and orphan's courts. In other American jurisdictions, a judge within a court of broader jurisdiction would typically be given responsibility for probate cases (usually in addition to other duties) because of that judge's expertise or interest in the area or to expedite the handling of this group of cases. Over time, this...
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