Every human being has in his possession at one time or another, items that he/she owns. These items range from high value property such as land, motor vehicles and houses to low value items such as clothing, books and kitchen items such as plates and forks. The only thing certain in life is that we will all die one day so an important question to ask is what happens to these possessions when an individual passes away. Well this article will provide some answers to the latter question.

Key Terminologies Worth Knowing

In Zambia and much like in most parts of the world, when a person dies, they may leave behind instructions on a document or other form of medium of how they want their property to be distributed after death. Such a document is called a will and a person who leaves a Will is said to have died testate. Often, however, persons die without leaving behind any instructions or incomplete instruction. In such cases, the person is said to have died intestate. Therefore, with this backdrop, the answer to the question on how the property of the person is dealt with after they die largely depends on whether they died testate or intestate.

In the case of a testate death, the person who makes a Will is called the testator. The persons legally entitled to receive an individual’s estate after death are called beneficiaries. When the deceased leaves a will, the people he names in the will to control and distribute his estate per his instructions are called executors (in the case of males) and executrix (in the case of females). Where no will is left, the appointed family members who will obtain letters of administration are referred to as administrators (in the case of males) and administratrix (in the case of females). The term personal representative broadly encompasses both administrators and executors and refers to any person that may legally administer the estate of a dead person. The Administrator General of Zambia refers to a government office which confers upon the holder of said office the title of personal representative of any estate .

Governing Legislation

The manner in which a testate or intestate estate is dealt with is found in the following pieces of legislation:

• the Intestate Succession Act, Chapter 59 of the laws of Zambia (“ISA”) which provides for how to deal with the estate of a person who died intestate;
• the Wills and Administration of Testate Estates Act, Chapter 60 of the laws of Zambia (“Wills Act”) which provides for how to deal with the estate of a person who died testate;
• The Administrator-General Act, Chapter 58 of the Laws of Zambia, which provides for the appointment of the administrator general and the duties conferred by virtue of holding that office; and
• the High Court Act, Chapter 27 of the Laws of Zambia which sets out the manner in which an individual may bring an application for an order for leave to apply for letters of administration/probate as well as how to institute other actions in relation to the estate of a deceased person.

Testate Estates

• As has been mentioned above, a person is said to have died testate when they leave a Will. The Wills Act sets out how testate estates are dealt with.
• Before delving into how a testate estate is dealt with, it is important to know the requirements for the Will to be considered valid because it is only after the validity of the Will is determined will the executors/executrix be able to proceed with distributing the estate in accordance with the Will. For a Will to be valid, it must satisfy the following three pronged test :
  • It should be in writing;
  • It should be signed at foot or end by the person creating the Will i.e the testator or where the testator is unable to for some reason such as being bedridden, it may be signed by some other person with authorization of the Testator and in his presence; and
  • The signature referred to in 4.2.2 above should be made or acknowledged by the testator in the presence of two other witnesses who should also sign the foot or end of the Will.
• Once the validity of the Will has been established, the executor/executrix should proceed to file into the probate registry of the Family Division of the High Court for Zambia, an application for leave to obtain a grant of probate. Grants of probate verify the validity of the Will and give the executor express permission to distribute the deceased’s estate per his instructions in the Will.
• An executor/executrix can choose to accept the role. It is important to note that when he/she accepts and takes up the role of executor/executrix of the Will, he/she must execute his/her duties in the following hierarchy:
  • the executor/executrix must first take control and possession of all the deceased’s property. This is done by identifying, locating and taking into possession all of the deceased’s assets. These assets include all property of value such as land, motor vehicles and unpaid salaries and dividends. The executrix is required to prepare an inventory list with the property.
  • Thereafter, he/she must settle all debts of the deceased, if at all there are any at the time of the death. This is done because the deceased’s estate comprises both assets and liabilities at the time of death. In order to determine the debts of the estate, the executor will have to carry out searches in various registries and also advertise in the newspaper of widespread coverage or the gazette. It is the duty of the personal representative to ratify all claims made by potential creditors. It is important to note that the executor may also remove a sum of money (where necessary) for the administration and distribution of the estate and to pay for the burial of the deceased.
  • Once the debts of the estate are settled, the executor may then distribute the estate of the deceased to the named beneficiaries in the Will.
• It is worth highlighting that the beneficiaries named in the Will only receive their portion of the estate after all the debts have been settled.
• The Will usually sets out what each beneficiary will receive including the amount and/or percentage. Even where the Will seems unreasonable, the executor/executrix is required to adhere to the testator’s wishes because the testator is free to deal with his/her property as he wishes provided he/she is of sound mind. Notwithstanding the foregoing, a person who believes they should have benefited from a Will or who believes the Will is unreasonable can apply to the court for maintenance from the estate. The court will consider the application and after examination of the circumstances the court may grant an order for provision of maintenance.

Intestate Estates

In the case of intestate estates, the distribution of the estate is done in accordance with the ISA. The procedure is similar to obtaining grants of probate however, it varies in certain aspects.

The ISA provides firstly, that where a person died intestate, the immediate family of the deceased must hold a family meeting wherein no more than four (4) members may be appointed to administer the estate of the deceased.

Thereafter, the appointed administrator(s)/administratrix(es) should apply to the High Court for leave to obtain letters of administration to enable the them to distribute the estate. Such application should exhibit the extract of the family meeting minutes which evidences the appointment of the administrator(s)/administratrix(es).

Due to the fact that the person who died did not leave a Will setting out how his/her property should be dealt with, the ISA provides guidance on the proportions in which the property should be distributed and it provides generally as follows :

Twenty percent goes to the surviving spouse, however, where a person leaves behind no spouse, the portion of the estate which the spouse would have inherited will be distributed to the children of the deceased in accordance with the child’s age or educational needs or both.

Fifty percent goes to the children, however, where a person leaves behind no spouse or children, the aggregate portion of the estate that would have been inherited by the spouse and children will be distributed to the parents of the deceased in equal proportions.

Twenty percent goes to the parents, however, where a person leaves behind no spouse, children or parents, the estate will be distributed to the dependents in equal proportions

Ten percent goes to the dependents, however, where a person leaves behind no spouse, children, parents or dependents, the estate will be distributed to the near relatives.

Lastly, where a person dies leaving behind none of the aforementioned persons, his estate will be declared bona vacantia, which means goods that are unclaimed and without a specific owner and therefore will be inherited by the State.

It is also important to note that where the deceased left a house as part of his estate, that house shall go to the surviving spouse and children. If the estate comprises more than one house, the spouse and children shall choose the house they wish to live in. Further, personal chattels are distributed equally and absolutely to the spouse, child or both where the deceased was in a monogamous marriage.

Intermeddling

In Zambia, more especially in the rural areas, property grabbing is a very common cultural practice. Property grabbing occurs when a person dies but before the estate is legally executed or administered and usually entails that the relatives of the deceased begin making claims on and physically collecting the deceased’s property. Such actions are referred to as intermeddling. Although this practice is slowly becoming less common because of advances in education and sensitization, it is illegal and should be reported to the Administrator General’s office .

Section 65(1) of the Wills Act expressly prohibits intermeddling of any form and states that the punishment for such intermeddling is a fine or imprisonment not exceeding 2 years. Persons should therefore, refrain from dealing with the property of a deceased person before a personal representative is appointed and should allow the personal representative to deal with the property of the deceased.

Conclusion

Administration of deceased estates is a very sensitive topic amongst the relatives of the deceased and therefore must be dealt with in a legal and orderly manner in order to avoid contention in the family. Due to the sensitivity and legal complexities, it is important for families that have lost a loved one and need to handle the affairs of such loved one to engage a skilled lawyer to assist them to administer the estate is a legal manner.

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