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TECHNICAL TERMS

Succession may be by will or if there is no valid will under the law of intestacy. The process of disposal of property when there is a valid will is known as testate succession. The person making the will is called the testator if male and the testatrix if female and the instrument called a will is referred to as a testament.

Intestacy refers to a situation of dying without having made a will or having made a will which is subsequently rendered void or invalid. Intestacy leads to intestate succession and the rules of intestacy are intended to determine the relatives of the deceased who are entitled to inherit his property. Here only blood relatives inherit apart from the spouse. The person who dies intestate is known as an intestate.



Administration of the estate refers to:
(a)     collection and presentation of assets
(b)     management
(c)     distribution

An administrator is the person appointed by the court in intestacy or in a will to manage the estate of a deceased person. Representation refers to the role of a person who is authorized in law to dispose off the property of the deceased. This is the role of an administrator and the two terms are used interchangeably.

The administrator is said to represent the deceased. The assets of the deceased vest in the administrator. He acquires legal title to the property and can do anything the deceased would have done e.g. sue, mortgage, sell etc The person who represents the deceased and acts as the administrator is also referred to as the personal representative of the deceased. However, the term administrator is usually confined to the person appointed in the event of intestacy. The administrator appointed under the terms of the will is referred to as the executor as he executes the wishes of the deceased as set out in the will.

A beneficiary is the person who is to benefit by receiving a gift under the will or testament. It is used in connection with testate succession. A person who inherits in intestacy is known as an heir.

Estate: means the total property both real and personal owned by someone and therefore, the property available for distribution upon death.
Dependant this is a technical term employed in circumstances where an heir or beneficiary has not been adequately provided for and makes an application to court. S 29 defines dependant but does not necessarily mean an heir or beneficiary it is limited by section 2 of the Act. Only those persons who fall under this definition can take advantage of this provision.

Bequest: gift of personal property in a will. The gift is named i.e. ‘specific bequest’. It can also be residual if it refers to the estate of the giver. It is not specific, it is a general gift of what remains. Legacy: another term that refers to a bequest. The beneficiary of a legacy normally called a legatee.

Grants of Representation: Issued by the courts to the administrator or personal representative of deceased. Take form of an order that a particular person is to act as the personal representative of the dead person.
In testate succession it is called a Grant of probate. In Intestacy there are Letters of Administration (grant of letters of administration)

The distinction is that in testate succession, the executor derives his authority from the will. Grant Of Probate is not the source of the Executor’s authority. It merely confers or authenticates the authority of the executor, thus it is merely evidence. In intestacy: the Grant of letters of administration is the source of the administrator’s authority. The “administrator” is appointed by the grant. His power to act derives from the grant itself, without which there would be no power for him to represent the deceased.

Executors can take up their responsibilities immediately after death of the deceased BUT in intestacy the administrator cannot act till he acquires a Grant of Letters of Administration (disadvantage since process of obtaining Grant of Letters of Administration takes about two months). The terms probate refers to the process through which a will is proved to be genuine and by which the executors are authorized to dispose off the estate of the deceased.

 
 
 

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