Succession is an essential legal process that ensures the orderly transfer of a deceased person’s property and assets to their beneficiaries. In Kenya, succession law governs the inheritance and distribution of a person’s estate, ensuring that their wishes are respected and that beneficiaries receive their rightful shares. Without a clear succession process, disputes often arise, leading to long court battles and strained family relationships.
In this blog, we’ll explore the basics of succession law in Kenya, the procedures for transferring assets, and how individuals can safeguard their estates for a smooth transition.
1.Understanding Succession Law in Kenya
Kenya’s succession laws are mainly governed by the Law of Succession Act (Cap 160), which outlines how a deceased person’s estate is managed and distributed. The Act provides two primary forms of succession:
- Testate Succession: This occurs when a person dies having left a valid will, specifying how their assets should be distributed.
- Intestate Succession: This happens when a person dies without a will, leaving it to the law to determine the rightful beneficiaries and how the estate will be divided.
Both testate and intestate succession come with specific procedures that must be followed to ensure a smooth transfer of assets.
2. Testate Succession: The Role of a Will
A will is a legal document in which a person (the testator) declares how their property should be distributed after their death. Having a valid will simplifies the succession process by providing clear instructions on asset distribution, reducing the chances of disputes among family members.
To ensure the will is recognized in court, it must meet the following requirements:
- Written Document: The will must be in writing.
- Capacity: The testator must be of sound mind and at least 18 years old.
- Signature: The will must be signed by the testator or by someone authorized to do so in the testator’s presence.
- Witnesses: The will must be signed by at least two independent witnesses who were present when the testator signed it.
In the case of testate succession, the executor named in the will is responsible for managing the estate and ensuring that the deceased’s wishes are fulfilled. The executor must apply for a grant of probate, which gives them the legal authority to administer the estate.
3. Intestate Succession: When There is No Will
When a person dies without leaving a will, their estate is subject to intestate succession. In such cases, the Law of Succession Act dictates how the estate is divided among surviving relatives, such as spouses, children, parents, or siblings.
Key rules of intestate succession include:
- Surviving Spouse and Children: If the deceased leaves behind a spouse and children, the estate will be divided equally between them. The surviving spouse is entitled to personal and household effects and a life interest in a portion of the estate, which will ultimately go to the children upon the spouse’s death or remarriage.
- No Children: If the deceased has a surviving spouse but no children, the spouse inherits the entire estate.
- Parents and Siblings: If the deceased has no spouse or children, the estate may pass to surviving parents or, if none, to siblings.
Without a will, the court appoints an administrator to manage the estate. This person is responsible for distributing the assets according to the intestate succession rules.
4. Steps in the Succession Process
The process of transferring assets after death involves several key steps, whether the person left a will or not. Below is a summary of the succession procedure in Kenya:
a) Application for a Grant of Representation
The first step in the succession process is applying for a grant of representation. There are two types:
- Grant of Probate: If the deceased left a valid will, the executor applies for probate.
- Grant of Letters of Administration: If there is no will, the administrator applies for letters of administration to manage and distribute the estate.
An application for the grant must be submitted to the High Court or the nearest Magistrate’s Court, and it includes details of the deceased’s estate and beneficiaries.
b) Publication in the Kenya Gazette
Once the application is submitted, a notice is published in the Kenya Gazette to notify the public of the succession process. This gives any interested parties the opportunity to raise objections if they believe they have a claim to the estate.
c) Confirmation of the Grant
After a waiting period of six months, the executor or administrator applies for a confirmation of the grant. This confirms the distribution of assets and allows the transfer of property to beneficiaries. During this process, the court ensures that the proposed distribution is fair and in line with the law or the wishes of the deceased (in the case of a will).
d) Transfer of Assets
Once the grant is confirmed, the executor or administrator is authorized to distribute the assets to the rightful beneficiaries. This may include transferring property titles, bank accounts, shares, and other assets to the beneficiaries named in the will or as dictated by the Law of Succession Act.
5. Dealing with Disputes
Succession disputes are not uncommon, especially in cases of intestate succession or when the validity of a will is contested. Some of the common issues include:
- Challenging the validity of a will: A will can be challenged on grounds such as forgery, undue influence, or the testator not being of sound mind when drafting the document.
- Disputes over beneficiaries: Family members or other individuals may contest the list of beneficiaries, claiming they have a right to a share of the estate.
- Disputes over asset distribution: Disagreements may arise regarding the fairness of how the estate is divided among beneficiaries.
Disputes are typically resolved through mediation or court proceedings. It’s advisable to seek legal counsel to resolve such matters fairly and efficiently.
6. Protecting Your Assets: The Importance of Estate Planning
To ensure a smooth transfer of assets after death, proper estate planning is crucial. This involves making arrangements for how your assets will be managed and distributed upon your passing, minimizing potential disputes, and safeguarding your beneficiaries’ future.
Here are some key estate planning steps:
- Draft a Will: The most important step is to have a legally valid will. It allows you to specify how your assets should be distributed and who should be responsible for managing your estate.
- Appoint an Executor: Choose a trusted individual to execute your will and manage the distribution of your assets.
- Review and Update Your Will: It’s important to periodically review your will to ensure that it reflects your current wishes and circumstances. Changes in family structure (such as marriage or the birth of children) should prompt a review.
- Consider Setting Up a Trust: A trust allows you to set aside assets for the benefit of specific individuals or purposes and can provide greater control over how those assets are distributed.
- Seek Legal Advice: Working with a qualified lawyer who specializes in succession law ensures that your estate is protected and that your plans are legally sound.
7. Conclusion
Succession law in Kenya provides a structured way to transfer assets and ensure the rightful beneficiaries inherit property. Whether you’re dealing with a will or an intestate estate, it’s important to follow the correct procedures to avoid disputes and delays. Estate planning, particularly the drafting of a will, is key to protecting your assets and ensuring a smooth transition for your loved ones.
By understanding the basics of succession law and taking proactive measures, you can secure your assets and give your family peace of mind, knowing that your wishes will be respected.