Property Settlement on Beneficiaries After Death: The Law On Probate and Administration

By: Angela Opoku-Bonsu ESQ,
Pupil, Zoe, Akyea & Co.

Angela is a barrister and solicitor of the Supreme Court of Ghana and a member of the Zoe, Akyea & Co. law firm. Her legal interests include but are not limited to Corporate and Commercial practice, Family Law and practice and Natural Resources law. She is also an LLM Candidate at the University of Ghana.

Edited by: Christine Opoku Onyinah & Emmanuel Kwaku Owusu-Asare

Introduction
Probate or Letters of Administration is the court process that empowers a person to lawfully administer a deceased person’s estate by identifying and valuing assets and liabilities, settling debts and taxes, and distributing what remains to the rightful beneficiaries.

In Ghana, the regime is principally governed by the Administration of Estates Act, 1961 (Act 63), Order 66 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), and the Intestate Succession Law, 1985 (PNDCL 111). In contentious matters, the Wills Act, 1971 (Act 360) takes centre stage.

Where there is a valid Will (testacy), Probate authorises the Executor(s) named in the Will to administer the estate in accordance with the testator’s wishes. Where there is no valid Will (intestacy), the court issues Letters of Administration (LA) to Administrators who must distribute the estate in accordance with statute.

Some estates are straightforward; others are complex and time-consuming. Understanding the requirements, forum, process and common pitfalls is therefore essential for families, personal representatives, and advisors.

This article explains: (i) the distinction between Probate and LA, (ii) which court has jurisdiction, (iii) who may apply, (iv) core procedural steps, (v) the offence of intermeddling, (vi) common challenges, and (vii) options for dispute resolution.

Probate vs. Letters of Administration

Probate

As explained by Samuel Azu Crabbe in Law of Wills in Ghana, Probate is a certificate of the High Court signifying that the deceased’s Will has been duly proved and registered, and that the Executor who proved the Will has authority to administer the estate. Before granting Probate, the court must be satisfied that the document relied upon is a testamentary instrument[i] validly executed and attested.

Letters of Administration (LA)

LA is a court instrument authorising a person to administer the estate of a deceased who died intestate (without a valid Will). Typically, LA is granted to the deceased’s personal representatives (surviving spouse, children and/or customary successor).

LA may also be necessary where the deceased left a Will but did not appoint an Executor.

Or in circumstances where the named Executor(s) renounce their mandate, fail to prove the Will, or die before completing administration, in which case the court may grant LA with Will annexed.

Which Court Has Jurisdiction?

As a starting point, an application for Probate or LA must be made to a court within the jurisdiction where the deceased had a fixed place of abode at death (Order 66, r.1 C.I. 47). Depending on the value of the estate, applications may be made in the High Court, Circuit Court, or District Court.

If the deceased had no fixed place of abode in Ghana (whether they died within or outside the country), jurisdiction lies in the area where any property of the deceased is located, provided the Rules or an enactment so allows. Where property lies in multiple jurisdictions, one court may receive the application in respect of all properties, but notice must be given to the registrars of the other competent courts (Order 66, r.1(3)).

Caveats

An interested person may file a caveat to prevent the grant of Probate or LA without first being heard. Any caveat filed must be brought to the attention of the court seized of the application, and this generally stays the grant until the caveator is heard (Order 66, r.11 C.I. 47). A caveat is therefore a formal warning to the Registry and the court that no grant should issue until the caveator’s challenge is determined.[ii]

Who May Apply for Probate?

Where a person dies testate, entitlement to a grant of Probate or LA with Will annexed is determined in the following order [iii]:

1. The Executor(s) named in the Will;
2. Any specific legatee or devisee, any creditor, or a personal representative of any such person;
3. Any legatee or devisee (residuary or specific) with a claim contingent on a future event;
4. Any residuary legatee or devisee holding in trust for another;
5. The ultimate residuary legatee or devisee where the residue is undisposed of;
6. A person with no interest under the Will who would otherwise have been entitled to a grant on intestacy.

If the named Executors are deceased, unwilling to act, or the Will names no executor, a person with an interest in the estate may apply for LA with Will annexed.

Who May Apply for Letters of Administration?

Under section 77 of Act 63[iv], the persons entitled include the surviving spouse(s), surviving child(ren)[v], surviving parent(s), and the customary successor. Order 66, r.13 (C.I. 47) provides that no more than four (4) applicants may be granted LA and sets the priority as follows :

(a) any surviving spouse;

(b) any surviving children;

(c) any surviving parents; and

(d) the customary successor of the deceased.[vi]

An Administrator must administer the estate in accordance with PNDCL 111. Importantly, a grant of Probate or LA does not make the personal representative the owner of the estate (although a representative may coincidentally be a beneficiary). The grant confers authority and duty to collect, protect, and distribute the estate to those lawfully entitled.

Timing and Forum

An application for Probate or LA may be made at any time after death to the court with jurisdiction over the deceased’s last place of abode (or, as noted, where property is situated). Forum selection again depends on the estate value and the court’s pecuniary jurisdiction.

Key Steps in Applying for Probate or LA

• Commencement: File a motion ex parte supported by affidavit.
• Affidavit content: Set out the deceased’s particulars, date and proof of death, last fixed place of abode, whether spouse/children, names and ages of surviving children, and the estimated value of the estate survived the deceased. State the applicant’s interest and relationship to the deceased.
• Testate estates: Executors must exhibit the testator’s last Will and complete the statutory forms (e.g., Oath of Executor and Affidavit of Witness).
• Estate schedule: File a declaration of movable and immovable property with values.[vii]
•  Proof of death: Exhibit a death or burial certificate or other acceptable proof.

A person who deals with a deceased’s property without a grant risks serious consequences (see Intermeddling, below).

Intermeddling: What It Is and Why It Matters

Intermeddling occurs where a person possesses, uses, manages, or distributes estate property without a grant of Probate or LA—for example, selling or giving away assets, withdrawing funds from bank accounts, or otherwise dealing with the estate’s property (even, by way of illustration, taking and using clothing or a mobile phone of the deceased).

Intermeddling is an offence. A named Executor who fails to apply for Probate within the period prescribed by law may be guilty of intermeddling (in addition to any civil liability).

Common Challenges in the Probate/LA Process

• Will challenges: Allegations of lack of testamentary capacity or undue influence.
• Distribution disputes: Ambiguities, inconsistencies, or disagreements about the testator’s intentions or statutory entitlements.
• Personal-representative disputes: Conflicts between co-Executors or co-Administrators.
• Delays and caveats: Caveats and contests over entitlement can significantly prolong proceedings.
• Estate liabilities: Creditor claims complicating the timing and quantum of distributions.
• Early instruction of counsel helps to manage risk, preserve value, and streamline administration.

Resolving Disputes

Where disagreements arise in the probate or letters of administration (LA) process, disputes are resolved through litigation in the courts.

In probate/LA applications, the court’s immediate concern is who is entitled to the grant.

If a party wishes to challenge the validity of a Will, assert competing proprietary interests, or seek relief beyond the grant itself, the proper course is to issue a writ for a separate action so that those matters are determined outside the grant application.

Interim relief: The court may grant interlocutory injunctions, preservation orders over estate assets, orders for inventories and accounts, and other protective measures to prevent dissipation or misuse of the estate pending trial.

Depending on the claim, the court may: declare a Will valid or invalid; pronounce for or against a Will in solemn form; remove or replace personal representatives; order administration under the court’s supervision; require accounts and inquiries; surcharge personal representatives for loss to the estate (including devastavit); and make appropriate costs orders, including personal costs against defaulting representatives where justified.

Judgments and orders are appealable through the usual appellate hierarchy within prescribed timelines.

Conclusion

Probate and Letters of Administration are foundational to the orderly administration of an estate.

A properly drafted Will, coupled with adherence to the statutory and procedural requirements in Ghana, ensures that assets are collected, liabilities discharged, and beneficiaries receive what the law or the testator intended.

Where disputes arise or the estate is complex, timely legal advice is indispensable.

FOOTNOTES

[i] A testamentary instrument is any document or paper made to take effect at the death of the maker and revocable during their lifetime.

[ii] A caveat is a notice of warning filed by a person interested in the estate of a deceased and addressed to the Registrar of the court with jurisdiction over the last place of abode of the deceased, instructing that no grant issue unless the caveator is heard. See Order 66, r.11, High Court (Civil Procedure) Rules, 2004 (C.I. 47).

[iii] Order 66, r.12, High Court (Civil Procedure) Rules, 2004 (C.I. 47).

[iv] Administration of Estates Act, 1961 (Act 63).

[v] Wills Act, 1971 (Act 360), s.18 defines “child” to include a person adopted under any enactment then in force relating to adoption; any person recognised by the person in question to be his child or to whom he stands in loco parentis; and, in the case of a Ghanaian, includes any person recognised by customary law to be the child of such person.

[vi] In re Asante (Dec’d) Owusu v. Asante [1993–1994] GLR 271.

[vii] Order 66, r.9(3), High Court (Civil Procedure) Rules, 2004 (C.I. 47).