The difference is that the Testate made a Will before dying and the Intestate did not make a Will before dying.

Dying testate means the deceased made a Will before he passed away. In this case, the properties will be shared in accordance with the Will.  In the Will, the Testator (the person who made the Will) names an “Executor”. The Executor is responsible enforcing the contents of the Will. He must apply to the Court for “Probate,” a legal document that will recognize him as the lawful Executor and grant him authority to act.

Dying intestate means the deceased did not make a Will or his Will cannot be found. In this case, the deceased’s personal wishes are legally irrelevant, and the distribution of their property is done under the Intestate Succession Law, 1985 (PNDC Law 111). The family cannot agree to share the property. The PNDCLaw 111 prescribes a fixed formula for how the estate is to be divided. Only the lawfully appointed “Administrator” has the right and authority to manage the estate. A qualified family member must apply to the court for “Letters of Administration” (LA), which legally appoints them as the “Administrator” of the estate.  

In Ghana, currently, there is no single central registry where Wills or information about Wills are kept. So the process of finding out whether a deceased left a Will involves inquiries with people and institutions most likely to have knowledge of the deceased’s affairs. The recommended procedure is as follows:

1. Inquire with Trusted Individuals: The search should begin with those closest to the deceased. This includes their lawyer (if known), surviving spouse, adult children, close friends, and trusted members of the extended family. A Testator would typically inform at least one of these individuals about the existence and location of their Will.   

2. Search Personal Effects: A copy of the Will, or information about its location, may be found among the deceased’s important personal documents. 

3. Conduct a Formal Search at the High Court: The Wills Act mandates that Wills can be deposited for safekeeping at the registry of any High Court in Ghana. If inquiries with family and friends yield no results, a formal search can be conducted at the High Court registry nearest to the deceased’s last address. This involves providing the full name of the deceased to check the court’s records for a deposited Will.

This is by no means a full proof guarantee, but simply the most reasonable-common sense approach. If all these steps are taken and no Will is found, it is highly probable that the deceased died intestate, and the family should proceed with the process for obtaining Letters of Administration. It is a criminal offense to conceal a Will. Any person who finds a Will is legally obligated to deposit it at the nearest High Court within 14 days of the Testator’s death, facing potential imprisonment or a fine for failure to do so.

For a Will to be valid and enforceable in Ghana, it must satisfy requirements of the Wills Act as follows:   

1. In Writing: The Will must be in writing. Oral or video-only Wills are generally not considered valid on their own, although a video may accompany a written Will as supplementary evidence.   

2. Signature of the Testator: The Will must be signed by the Testator. If the Testator is unable to sign (for example, due to illiteracy or physical incapacity), they may thumbprint, or another person may sign on their behalf, but this must be done in the Testator’s presence and by their direction.

3. Attestation by Two Witnesses: This is a critical and often misunderstood requirement. The Testator’s signature (or the signature made on their behalf) must be made or acknowledged in the presence of at least two witnesses, both of whom are present at the same time.    

4. Signature of Witnesses: The witnesses must then sign the Will in the presence of the Testator. The witnesses do not need to know the contents of the Will; their role is simply to attest to the fact that they witnessed the Testator signing the document.    

5. Testamentary Capacity: The Testator must have been of sound mind, memory, and understanding at the time of making the Will. This means they must have understood the nature of the act of making a Will, the extent of the property they were disposing of, and the claims of those who might expect to benefit. A Will can be challenged and invalidated if it can be proven that the Testator lacked mental capacity at the time of its creation.   

The absence of any one or more of these elements, particularly the attestation by two witnesses, will render the Will invalid.

Strictly speaking, it is not compulsory to use a lawyer to prepare a Will for it to be valid. Under the Legal Profession Act, 1960 (Act 32), a Will is not a “legal document”. This means an individual can prepare their own Will without legal assistance.   

However, the question of whether a non-lawyer can prepare a Will for another person is more complex. While the law does not explicitly grant non-lawyers a general liberty to prepare Wills for others, it does not strictly prohibit it in the same way it does for other legal documents. The law does make specific provisions for non-literate or blind persons to have documents, including Wills, prepared for them by non-lawyers.   

Nevertheless, it is highly recommended that anyone who wants to make a Will ought to engage the services of a competent lawyer. 

A Testator cannot bequeath a specific property that they do not own or which does not exist at the time of their death. However, a well-drafted Will can and should include a “residuary clause”.  

A residuary clause is a provision in a Will that deal with any property that is found belonging to the Testator but which is not mentioned in the Will.  This includes property belonging to the Testator which he forgot to mention, or which did not exist at the time the Will was made. 

eg. “I give any property which belongs to me and which i have not already mentioned in this Will to my wife, Yaa, my daughter, Abena and my son, John.” This ensures that all assets are distributed according to the Testator’s wishes and that no part of the estate is left to be treated as intestate.

The process is formal and court-supervised. Many people are unaware of this official process, leading to fears that a Will could be hidden or tampered with by family members. The court’s role is to act as a neutral arbiter and custodian. 

1. Deposit of the Will: Any person in possession of a deceased’s Will is legally required to deposit it at the registry of the High Court within 14 days of learning of the Testator’s death. The Will is typically sealed in an envelope. 

2. Request for Reading: The family, typically through the Executor or a principal member, can then request the High Court Registrar to arrange a formal reading of the Will.  

3. The Reading of the Will: The Registrar will schedule a meeting and invite key family members, such as the surviving spouse, adult children, and principal members of the extended family. At this meeting, the Registrar will unseal the Will for the first time and read its contents aloud to those present. This is not a private family matter to be conducted at home, but an official court procedure. 

4. Application for Probate: After the Will has been read, the Executor(s) named in the Will must apply to the High Court for a “Grant of Probate.” Probate is the legal process that validates the Will and officially confirms the Executor’s authority to manage the estate. It is a criminal offense to begin distributing or dealing with the estate’s assets before Probate has been granted.

5. Execution: Once Probate is granted, the Executor is empowered to gather all the assets of the estate, pay any outstanding debts and taxes, and then distribute the remaining property to the beneficiaries exactly as stipulated in the Will.

Any interested party who believes a Will is invalid can contest it in court. However, the burden of proof lies with the person challenging the Will. Common grounds for contesting a Will in Ghana include: 

• Improper Execution: The Will was not made in accordance with the strict formal requirements of the Wills Act (e.g., it was not signed by the Testator or was not attested to by two witnesses).

• Lack of Testamentary Capacity: It can be proven that the Testator was not of sound mind when the Will was made.

• Undue Influence or Coercion: It is alleged that the Testator was forced or pressured into making the Will or including certain provisions against their true wishes.

• Fraud or Forgery: The Will is alleged to be a forged document, or the Testator was deceived about the nature of the document they were signing.

• Revocation: The Will being presented was revoked by the Testator at a later date, for instance, by creating a new Will.

A successful challenge will result in the Will being declared invalid. In such a case, the deceased will be deemed to have died intestate, and the estate will be distributed according to PNDC Law 111.

This situation is known in law as the “doctrine of lapse.” If a beneficiary named in a Will dies before the Testator, the gift intended for that beneficiary is said to have “lapsed.” The property in question “falls into residue”.

This means the property that would have gone to that beneficiary becomes part of the Testator’s residue. It is treated like property that was not mentioned in the Will. If there is a residue clause in the Will, then it will be distributed according to the residuary clause in the Will. If the Will does not contain a residuary clause, then that specific property will be treated as if the Testator died intestate with respect to it, and it will be distributed according to the rules of PNDC Law 111.

When a person dies intestate, no one has the automatic right to manage or distribute their property. The authority to do so must be granted by a court of law. A qualified person must apply to the Appropriate Court for a legal document known as Letters of Administration (LA).

The LA officially appoints one or more individuals as the Administrator(s) of the deceased’s estate. Only the court-appointed Administrator has the legal power to take control of the deceased’s assets, such as accessing bank accounts, managing properties, paying debts, and ultimately distributing the estate to the beneficiaries as prescribed by PNDC Law 111.

It is absolutely mandatory to obtain Letters of Administration (LA) from the court before dealing with or distributing the property of an intestate person. There are no exceptions to this rule, regardless of whether the family is in complete agreement or desires a “peaceful” informal settlement to avoid court processes and costs. 

The law’s position is uncompromising. Any attempt to bypass the court process and distribute the estate through a family meeting or by the decision of the family head is illegal. The rationale behind this rigidity is to provide a standardized, transparent, and legally enforceable process that protects the rights of all statutory beneficiaries, particularly the surviving spouse and children, from potential dispossession or unfair treatment under informal or customary arrangements. The LA process is therefore not merely a bureaucratic step but a fundamental legal safeguard.

Intermeddling is the legal term for dealing with the property of a deceased person without first obtaining Probate (if there is a Will) or Letters of Administration (if there is no Will). It is a serious offense under Ghanaian law.  

Examples of intermeddling include:

• Taking possession of the deceased’s properties.

• Collecting rent from the deceased’s tenants.

• Withdrawing money from the deceased’s bank accounts.

• Selling any of the deceased’s assets.

• Distributing the estate among family members.

Intermeddling is a criminal offense, and the consequences are severe. A person found guilty of intermeddling is not only subject to a fine or imprisonment (or both), but they are also held personally liable for double the value of the estate they intermeddled with. This stringent penalty underscores the law’s intent to deter anyone from bypassing the formal court-supervised administration process.

PNDC Law 111 establishes a clear hierarchy of priority for individuals who are qualified to apply to the court to be appointed as Administrator. This hierarchy is a cornerstone of the law’s reformist agenda, as it legally prioritizes the nuclear family unit. The court will consider applicants based on the following order of precedence :   

This means a surviving spouse has the highest right to apply, followed by the children, and so on. The court can appoint more than one person to act as co-administrators. For example, it could appoint the surviving spouse and the eldest child to act jointly. If there is more than one spouse, the first spouse has priority, and if there is more than one child, the eldest has priority in applying. This legal structure is designed to prevent scenarios where extended family members might attempt to seize control of the estate from the deceased’s immediate household.

Yes, children can apply for Letters of Administration without the direct involvement or consent of the extended family or customary successor. According to the legal hierarchy, children have a higher priority to apply for LA than the customary successor. 

While the law does not legally require the Head of Family to endorse an application for LA, it has been noted that some judges, as a matter of practice, prefer to see evidence of family consensus or at least the involvement of the head of family. This is often to ensure that all interested parties are aware of the proceedings and to minimize future disputes. However, if the family is uncooperative, the court will ultimately follow the legal hierarchy of priority. An application from a person with a higher right (like a child) will take precedence over an application from someone with a lower right (like a customary successor).

The distribution under PNDC Law 111 occurs in two stages. First, specific assets are dealt with, and second, the remainder of the estate (the “residue”) is divided by percentage.

The law first sets aside the deceased’s household chattels (personal effects like furniture, appliances, and cars not used for commercial purposes) for the surviving spouse and children. After this, the law addresses the matrimonial home or one house. 

• Surviving Spouse: Receives three-sixteenths ($3/16$) or 18.75% of the residue.

• Surviving Children: Receive nine-sixteenths ($9/16$) or 56.25% of the residue.

• Surviving Parent(s): Receive two-sixteenths ($2/16$) or 12.5% of the residue.

• Customary Law: The final two-sixteenths ($2/16$) or 12.5% of the residue is distributed according to the rules of the deceased’s Customary Law.

Under the PNDCLaw 111, If the deceased intestate owned only one house, that house is not considered part of the residue to be divided by percentage. Instead, it automatically devolves jointly to the surviving spouse and surviving children as tenants-in-common.

If the deceased owned more than one house, the surviving spouse and children are entitled to choose one house of their preference. This chosen house then becomes their joint property, and the remaining houses fall into the residue of the estate to be distributed according to the percentage formula. – Spouse-18.65% | Children-56.25% | Parent-12.5% | Family-12.5%

The law is designed to be inclusive of complex family structures, provided the relationships are legally recognized.

• Multiple Spouses: If the deceased was in a valid polygamous marriage (e.g., multiple customary or Islamic marriages), all legally recognized surviving spouses will share the spousal portion ($18.75\%$ of the residue) equally among themselves. 

• Children from Different Partners: The law does not discriminate between children based on their mother or whether their parents were married. All biological and legally adopted children of the deceased have an equal right to inherit. They will all share the children’s portion ($56.25\%$ of the residue) equally among themselves.

PNDC Law 111 anticipates scenarios where one or more categories of beneficiaries do not exist. In such cases, the law reallocates the shares within distinct “blocks” of beneficiaries. The spouse and children form one block, while the parents and customary successors form another. 

• No Surviving Spouse: If there is no surviving spouse, their $18.75\%$ share is added to the children’s portion. This means the children will receive a total of $75\%$ of the residue ($56.25\%+18.75\%$).

• No Surviving Children: If there are no surviving children, their $56.25\%$ share is added to the spouse’s portion, giving the spouse a total of $75\%$ of the residue. However, some interpretations and legal applications suggest a different split in this scenario, where the spouse receives $50\%$, the parent(s) receive $25\%$, and the customary portion is $25\%$. 

• No Surviving Parents: If there are no surviving parents, their $12.5\%$ share is added to the portion designated for Customary Law distribution. This means the customary/family portion increases to $25\%$.

In the specific circumstance where the deceased dies leaving no surviving spouse, no surviving child, and no surviving parent, the entire framework of PNDC Law 111’s percentage distribution does not apply. Instead, the law dictates that the entire estate shall devolve according to Customary Law. In this situation, the customary successor would apply for Letters of Administration and then distribute the estate according to the specific inheritance traditions of the deceased’s tribe or family. Even in this case, obtaining Letters of Administration from the court remains a mandatory first step.

A deceased person’s estate comprises all property, assets, and legal rights that were legally owned by and registered in the name of the deceased at the moment of their death. This includes, but is not limited to:

• Real estate (houses, apartments, land)

• Bank accounts and financial investments

• Shares in companies

• Vehicles

• Business assets (for sole proprietorships)

• Life insurance policies where the “estate” is the named beneficiary

• Personal effects and household chattels

Any property not legally owned by the deceased cannot be part of their estate for distribution

No. This is a critical legal principle that is frequently misunderstood. The law determines ownership based on the name on the official title document (e.g., the indenture or land title certificate), not based on who provided the funds for the purchase or construction.

If a man builds a house for his wife and the property title is registered in her name, that house legally belongs to the wife, not to him. Upon his death, that house is not part of his estate and cannot be distributed under his Will or PNDC Law 111. The same applies if a property is titled in a child’s name. The property belongs to the person on the title deed, regardless of the source of funding.

Beneficiaries are not powerless when faced with a delinquent Administrator or Executor. The law provides recourse to hold them accountable for their fiduciary duties. If an Administrator is mismanaging assets, failing to provide accounts, unduly delaying the distribution, or refusing to perform their duties without just cause, the beneficiaries can take legal action. 

The primary remedy is to file an application at the same court that granted the Letters of Administration or Probate. The beneficiaries can ask the court for one or more of the following orders:

• An order compelling the Administrator to provide a full account of the estate’s assets and expenditures.

• An order compelling the Administrator to proceed with the distribution of the estate.

• An order for the removal and replacement of the offending Administrator with a new one.

The court will hear the case and make orders that are necessary to protect the estate and the rights of the beneficiaries.

When family members who are not the legal Administrators take control of estate property, they are committing the offense of intermeddling. The legally appointed Administrator has the authority and responsibility to stop this interference and recover the property for the estate. The recommended course of action is:

1. Assert Authority: The Administrator should present the official Letters of Administration or Grant of Probate to the intermeddling relatives and demand that they cease their activities and hand over the property.

2. Involve the Police: If the relatives refuse to comply, the Administrator can report the matter to the police. Since intermeddling is a criminal offense, the police may be able to assist in evicting squatters or stopping unlawful activities, especially if the trespassers have no claim of right to the property.

3. Initiate Litigation: If the intermeddler assert some form of claim to the property (e.g., claiming it was gifted to them or that they are tenants), the police may be reluctant to intervene. In this case, the Administrator’s only recourse is to initiate a civil lawsuit in court for recovery of possession of the property. This can be a lengthy process, but it is the definitive legal way to resolve ownership disputes and evict unlawful occupants.

It is common for a single property, such as a house, to be inherited jointly by multiple beneficiaries. Disputes often arise when these co-owners cannot agree on the use or disposal of the property (e.g., some want to sell it, while others want to live in it).

When the beneficiaries cannot reach an amicable agreement, the matter can be taken to court for resolution. Courts typically resolve such deadlocks in one of two ways:

1. Buy-Out Order: The court may order that the property be professionally valued. The beneficiaries who wish to keep the property will then be ordered to buy out the shares of the beneficiaries who wish to sell. For example, if a house is valued at 500,000 GHS and is owned by five siblings, the four who wish to keep it would have to pay the one who wants to sell their one-fifth share of 100,000 GHS.  

2. Order for Sale: If a buy-out is not feasible or agreed upon, the court can order that the property be sold on the open market and the net proceeds be divided among the beneficiaries according to their respective shares.

There are three main categories of costs associated with the estate administration process:

1. Court Fees: These are administrative fees paid to the court for filing documents and processing the application. These are generally fixed and relatively modest.

2. Legal Fees: This is the professional fee charged by a lawyer for their services in preparing the application, representing the applicants in court, and providing legal advice. This is often the most significant cost component.

3. Estate Duty: This is a substantial fee that must be paid to the court before the final Letters of Administration or Grant of Probate will be released.

Despite its name, “Estate Duty” in Ghana is not a tax levied by the Ghana Revenue Authority. It is a court fee imposed under the Civil Proceedings (Fees and Allowances) Rules, CI 86.

It is calculated as a percentage of the gross value of the deceased’s estate. The rate is typically between 1% and 3%, with 3% being commonly applied by the courts. This fee must be paid after the court has approved the application but before the official LA or Probate certificate is issued to the Administrator. This creates a significant practical problem for many families, as they are often forced to borrow money to pay the duty in order to get the very document they need to access the estate’s funds. This “catch-22” situation is a recognized systemic challenge that can place a heavy burden on grieving families.

Lawyers’ fees in Ghana are regulated by the Ghana Bar Association’s official scale of fees. The fees are not fixed but are typically calculated based on the complexity of the case and the value of the subject matter (e.g., the value of the estate or the properties in a divorce).

For contentious matters, fees are often charged as a percentage of the value of the property recovered or defended. For non-contentious matters like a straightforward LA application, a lawyer might charge a flat fee or a fee based on the value of the estate. These fees are negotiable between the lawyer and the client. A typical range for legal fees in a divorce case or estate administration case could be from 5,000 GHS to 90,000 GHS or more, depending heavily on the complexity and contentiousness of the case. It is crucial for clients to have a clear discussion with their lawyer about the fee structure at the outset of the engagement.

For individuals who cannot afford the services of a private lawyer, assistance is available through the Legal Aid Commission. The Legal Aid Commission is a government agency with offices in various regions of Ghana. It provides free or very low-cost legal services, including advice and court representation, to Ghanaians who meet its eligibility criteria for financial hardship. This is a vital resource for ensuring access to justice for all, regardless of their financial situation.

Under the modern statutory framework of PNDC Law 111, the role of Customary Law in intestate succession is specific and limited. Customary Law applies in two main situations:

1. Distribution of the Family Portion: In a standard intestate distribution, a fraction of the estate residue ($12.5\%$ or $25\%$, depending on the scenario) is designated to be distributed according to Customary Law.

2. Absence of Nuclear Family: If a person dies intestate without leaving a surviving spouse, child, or parent, the entire estate is distributed according to Customary Law.

The responsibility for distributing the portion that devolves according to Customary Law typically falls to the Head of Family or the Customary Successor of the deceased. They are required to share this portion among the members of the extended family in accordance with the specific inheritance traditions of the deceased’s tribe.