Dying without a Will: The consequences for your loved ones

This is because, without a valid Will, the court has to name an administrator to take care of one's estate. Given the sluggishness of the Ugandan justice system, where on average, a case takes at least a minimum of three years to be disposed of, this can be time-consuming, expensive, and even frustrating for the bereaved family in trying to chase letters of administration to continue running the estate of the deceased.

One of the major reasons to have a valid Will is to streamline court processes.

A Will is a written document where a person shows how his or her property should be distributed upon their demise.

Legally, dying without leaving a Will is known as dying intestate, and dying when you have left a Will is known as dying testate.

Mr Sam Mugisha, the acting Registrar of Legal Education Public Affairs and Research at the Judicial Service Commission (JSC), explains that when a person dies, whether he has left a Will or not, his or her property is immediately administered by the public trust/ office of the Administrator General.

Getting letters of administration

He adds that if the deceased person didn’t leave a Will and yet he or she had some property, the closest people can then begin the process of getting the letters of administration.

Mr Mugisha says they start by identifying among themselves who will pursue the letters of administration.

“The choice is given to the closest to the deceased, that is to say, the spouse, children or parents,” he says.

Mr Mugisha adds that a family meeting is then held to determine who are the rightful children of the deceased, his or her property that he left behind, and relatives.

“Once these issues are determined, then the Administrator General gives a letter of no objection, paving the way to file an application before the High Court for letters of administration,” he explains.

“When you file an application in the court, you advertise in the media that so and so is seeking letters of administration and if the given period (14 days) passes without any member of the public challenging the process, the court will proceed to issue the letters of administration to the rightful proper person/s to be the administrator of the estate,” Mr Mugisha adds.

He says upon being issued with the letters of administration, those entrusted with the task are supposed to file an inventory with the court within a period of six months, detailing how they distributed what the deceased left behind and that the letters of administration are valid for up to two years.

Property distribution

Unlike in the previous law, the amended succession law now prohibits the distribution of the matrimonial home and that the same should be under the stewardship of the surviving spouse. It’s until he or she dies that is when the lineal descendants, the children can take it over.

Likewise, Mr Henry Kuloba Wesaka, the assistant administrator general in the office of the Administrator General, says when someone dies without leaving behind a valid Will, the estate of the deceased is assessed.

He says if it is worth more than Shs50m, the family of the deceased is made to approach their office to kick -start the process of acquiring letters of administration.

“Eventually, the Administrator General issues the selected persons with a certificate of no objection, who then proceed to the High Court to apply for the letters of administration,” he explains.

The Succession Act as Amended, 2022, says the distribution of the property left by a deceased who didn’t leave a valid Will, demands that 75 percent of the estate goes to his or her children, 20 percent to the surviving spouse, four percent to the dependent relatives and one percent to the heir.

Mr George Musisi, a lawyer while speaking to our sister television, NTV-Uganda, recently, said the law makes it a criminal offence when you distribute the estate of the deceased without authority from the court.

He says if one dies without a nearest relative, they have to stretch the extended family to see how far they can go to get a blood relative in his or her lineage.

Dr Sylvia Namubiru Namukasa, the chief executive officer of Legal Aid Service Providers Network (LASPNET), opines that if the deceased left children who are still school going, they should deduct 20 percent from the 75 percent allocated to them by the law to enable them to complete their studies.

Since Mr Mugisha’s core work involves teaching the general public about the application of the law, he says the majority of the people he has interfaced with are ignorant about the succession law.

He says usually when people die, the relatives rudimentarily share the little property the deceased has left behind to satisfy their selfish interests and not the law.

“They don’t take the formal processes with the Administrator General and later the court. This practice amounts to a criminal offence called intermeddling in the estate of the deceased person,” he says.

The offence of intermeddling with the deceased’s property is a serious one in Uganda, and once found culpable, one is liable to a fine not exceeding 1,000 currency points (the equivalent of Shs20m) or imprisonment of not exceeding 10 years or both.

Going forward

Mr Mugisha has since called upon the populace to always follow the law even in handling the property of the dead. 

“Everyone’s property is protected even in death. There is no free property and law and rights protect all property; so let's avoid breaking the law, which has serious consequences,” he appeals.

He continues: “So our call to the people out there is to comply with the law such that we have safe and secure societies.” 

KEY QUESTIONS ANSWERED

Can a family home be distributed?

The family home, the things in it, and the surrounding land cannot be distributed under the Will except where the testator makes reasonable provision for the accommodation of the spouse and the children of the deceased who occupied the same home at the time of his or her death.

What if the Will does not mention the executor?

If the Will does not mention the executor, the person picked following a family meeting, will have to go to the Administrator General’s office to get a certificate of no objection to enable them to process letters of administration from the court.

Can a Will be changed?

Yes, One may change all or part of the content. One has to attach a separate document where one has made the changes to the old copy of the Will and all your witnesses must sign, including oneself.

Circumstances to warrant a change of Will -If one had made one while single, a new Will has to be made when one gets married -When the Will maker gets more children or dependants -If a person divorced and remarried.

GUIDELINES ON WRITING A WILL

1 Age. Anyone above 18 years is eligible to make a Will.

2 Language. The law allows one to make their Will in any language of your choice.

3 Heir. The law also allows one to leave their property to any person(s) of their choice. However, there are those persons whom one can’t leave out in one’s Will and they are; one’s children, wife (wives), or husband, parents and close relatives who are dependent on the person for their ordinary and basic necessities of life. However, if one wishes to leave out any of the aforementioned categories of people, they have to state the reasons for doing so in the Will.

4 Signature. It’s important to sign one’s Will at the bottom of each page and also on the final page. The Will should be signed in the presence of at least two witnesses who should not be beneficiaries of the said Will. The witnesses need not read the contents of your Will and should be above 18 years.

5 Witnesses. The witness should also sign one’s Will in each other’s presence.

6 Custody. At least two or more copies of the Will should be made and kept separately with one’s banker, religious leader, lawyer, spouse, trusted friend or any other person of one’s choice. 

WHO WRITES A WILL

-Anyone above 18 years.

-Be of sound mind at the time of writing the Will.

-Not be under the influence or control of any person to deprive the testator of freedom of mind.

What should be contained in a Will?

-The date. -Name of the testator. -Names of spouses.

-Names of the children.

-Names of dependant relatives.

-Signature or thumbprint of the testator.

-Signatures and thumbprints of at least two adult witnesses who are not benefiting from the property.

-Describe with relevant details all the properties of the deceased. -An executor who will distribute the property.

-The names and addresses of people to whom the testator is giving property.

-Any debts and the amounts.