LEGAL ALERT NO.4 OF 2021.
- Intestate Succession
This is the process of distribution of a person’s property when they die not having written a Will. The distribution of Property is governed by the Law of Succession Act and the Deceased person does not have any discretion over how the property is distributed.
1.1 The Process of Intestate Succession
The process of intestate succession involves the following steps: –
Petitioning for Letters of Administration
The process of intestate succession is commenced by petitioning Court for grant of Letters of Administration. A Letter of Administration is an authority granted by the Court to the recipient to administer the estate of a Deceased person and the said recipient is referred to as the Deceased’s Personal Representative.
The law entitles the following persons to petition Court for Letters of Administration in order of priority: –
- spouse;
- children;
- parents;
- siblings;
- step-siblings;
- blood relatives of the Deceased person up to the sixth degree of consanguinity;
- the Public Trustee; and
- the Creditors of the Deceased person.
Once the entitled person has applied to Court for the grant of Letters of Administration, the application is published in the Kenya Gazette inviting any person who wishes to object to the Application to lodge their objection in Court within 30 days of publication. If no objection is raised within the 30 days or if any objections raised have been resolved or dismissed, the Court grants the Letters of Administration to the Applicant.
The Personal Representative has authority to deal with the Property of the Deceased person including collecting and preserving them as well as paying off the debts of the Estate. They are the only persons entitled under the law to deal with the Property of the Deceased person and it is a criminal offense punishable by law for a person who is not the Personal Representative to deal with the Property of the Deceased person.
They however cannot distribute the Estate to the beneficiaries until the Letters are confirmed as discussed below.
Confirmation of Letters of Administration
After six months of issuance of the Letters of Administration, the Personal Representative is then required to make an application for confirmation which essentially seeks the Court’s approval to the proposed distribution of the Estate to the beneficiaries. The application must contain a list of all the beneficiaries of the Estate and must also disclose their share of the Estate. The Court upon being satisfied with the proposed distribution confirms the grant of Letters of Administration by issuing a Certificate of Confirmation of Grant. The Personal Representative then distributes the Property among the beneficiaries in accordance with the confirmed mode of distribution.
The law requires the Personal Representative to complete administration of the Estate within six months of confirmation of the grant of Letters of Administration or such longer time as the Court may allow. They also have an obligation to produce to the Court a full and accurate inventory of the assets and liabilities of the Deceased as well as a full and accurate account of all the dealings therewith and the completed administration.
Beneficiaries under Intestate Succession
Under intestate succession, surviving spouses and children are automatically entitled to a share of the Deceased person’s Property. The children include those sired by the Deceased person out of wedlock. Other persons may be entitled to a share of the Property but only if they were being maintained by the Deceased person immediately before their death. They include the Deceased’s parents, grandparents, grandchildren, siblings, step-siblings, and adopted children.
1.2 Distribution of Property under Intestate Succession
This is dependent on the structure of the Deceased’s family at the time of distribution.
- Where the Deceased had a surviving spouse and children: –
The spouse is entitled to the personal and household effects of the Deceased person absolutely together with a life interest on the whole residue of the net intestate Estate. Net intestate Estate refers to all the Property of the Deceased person after paying off the debts/liabilities left behind by the Deceased person. Life interest-only entitles the spouse to the use and utility of the Property subject to life interest. They may generate income from it during their lifetime but the Property does not pass to them absolutely. They are therefore not allowed to sell the property or give it out by way of a Will. The life interest determines on remarriage or death of the spouse after which the net intestate estate is divided among the children equally.
The spouse may however during the continuance of the life interest appoint any or all the capital assets among the children by way of an immediate gift. Such gifts cannot take effect in the future and cannot be given by way of a Will.
The spouse may also, with the consent of all the co-trustees and all adult children and the consent of the Court in the case of immovable Property, sell any of the Property subject to the life interest if it is necessary for that spouse’s own maintenance.
- Where the Deceased had a surviving spouse and no children
In this instance, the spouse is entitled to the personal and household effects of the Deceased person absolutely, the first Kshs. 10,000/= or 20% of the remainder of the net intestate Estate whichever is greater absolutely and a life interest on the whole of the remainder. This life interest ends upon death or remarriage of that spouse where after the Property is distributed to the following persons in order of priority: –
- the parents; and if dead
- the siblings; and if none
- the half-siblings; and if none
- the blood relatives of the Deceased person up to the sixth degree of consanguinity; and if none
- the state.
- Where the Deceased left behind children but no spouse
The property is inherited by the children equally. If there are minor children, the Property is held in trust for them by the Personal Representatives and is given to the children upon attaining the age of eighteen years. In such cases where minor children are involved, the law makes it mandatory for the Personal Representatives to be more than one person.
Where the Deceased left behind no children and no spouse
In such instances, the property is inherited by the following persons in order of priority: –
- the parents; and if dead
- the siblings; and if none
- the half-siblings; and if none
- the blood relatives of the Deceased person up to the sixth degree of consanguinity; and if none
- the state.
- Where the Deceased had a polygamous family
In such instances, the personal and household effects of the Deceased person together with the remainder of the net intestate Estate is inherited among the families according to the number of children in each house but including any surviving spouse as an additional unit to the number of children. For instance, where a house has three children and one wife, then that house is considered as having four units.
After that, each house divides the Property as explained above according to the respective family structure.
- Testate Succession
Testate succession refers to the disposition of Property belonging to a Deceased person according to a Will or Testament made by the said Deceased person. A valid and enforceable Will ensures that upon the death the Deceased’s Property passes to a person/s of the Deceased’s choice.
2.1 Wills
A Will is a legal declaration by a person of his/her wishes or intentions regarding the disposition of the person’s property upon death, duly made and executed according to the provisions of the Law of Succession Act (cap 160). Wills may be made either orally or in writing.
Oral Wills – For an Oral Will to be considered valid it must: –
- be made before two or more competent witnesses; and
- the Maker must die within a period of three months from the date of making the Will.
Written Wills – For a Written Will to be considered valid it must: –
- bear the signature of the Maker;
- be attested by two competent witnesses each of whom must have seen the Maker sign or affix the Maker’s mark to the Will.
A competent witness is a person of sound mind and full age.
2.2 Authentication of Wills
In proving the validity of a Will, the Court must be satisfied that the Will complies with the formal requirements of the law and that the Maker had the capacity to make the Will. The Maker of the Will appoints a Personal Representative referred to as the Executor, to administer the Estate and distribute the same to the persons entitled under the Will. The said Executor is mandated to apply for a Grant of Probate upon the death of the Maker.
Procedure for Application of Grant of Probate
A Grant of Probate refers to the certificate issued by the High Court confirming that the Deceased’s Will has been proved as a valid Will.
The application for Grant of Probate is by way of Petition. The said Petition contains: –
- the full particulars of the Deceased, including: names, date and place of death, last known place of residence, relationship of the Applicant with the Deceased;
- a full inventory of all the Assets and Liabilities of the Deceased;
- the names and present addresses of Executor(s) and the postal and residential addresses of the Applicant.
The Petition is accompanied by: –
- the original Will;
- original Death Certificate;
- original Searches in respect of the Deceased’s immovable Property;
- copies of the identification documents for the Executor and the Beneficiaries named under the Will;
- letter from the Area Chief confirming the Beneficiaries entitled under the Deceased’s Estate.
The Petition is advertised in the Kenya Gazette to inform the public of the intended succession and invite any objection within a period of 30 days from the date of publication to the issuance of the Grant (if any). lf no objections are raised within the 30-day period, a Grant of Probate is issued.
Effect of Grant of Probate
A Grant of Probate establishes the validity of the Will and confirms the Executor’s authority to act. Upon being issued with the said Grant, the Executor has a duty to: –
- collect and preserve the Estate; and
- pay the just debts and liabilities of the Estate.
The Grant of Probate does not confer authority on the said Executor to sell or distribute the Capital Assets belonging to the Deceased. Distribution or sale of such Capital Assets can only occur after the Grant is confirmed and a Certificate of Confirmation of Grant is issued. Capital Assets refer to the Property of the Deceased person available for paying debts or distribution.
Distribution under Testate Succession
After a period of 6 months after issuance of the Grant of Probate, the Executor files an Application for Confirmation of Grant. The said Application specifies: –
- the Beneficiaries of the Deceased;
- schedule of Assets and Liabilities of the Estate of the Deceased;
- shares of the Beneficiaries in the particular Assets.
Procedure for Application of Confirmation of Grant
- Summons for Confirmation of Grant are filed and a date of hearing of the Application is taken in the registry;
- the Executor together with the Beneficiaries appear before the Judge on the said date;
- a Beneficiary who is unable to appear may be required to file a Consent to the Confirmation of Grant to dispense with such attendance (subject to the discretion of the Court);
- Upon verification of the parties appearing for the hearing and the Judge being satisfied with the application and contents of the Will, the Court will duly confirm the grant and issue a Certificate of Confirmation of Grant.
Effect of Confirmation of Grant
Confirmation of the Grant empowers the Executor to distribute the Capital Assets of the Deceased to the Beneficiaries as per the Will. Any sale of Assets to a prospective purchaser can only be effected after the Certificate of Confirmation of Grant is issued.
Upon Confirmation of Grant, the Executor has a duty to: –
- to complete the administration of the Estate within six months from the date of Confirmation of the Grant, or such longer period as the Court may allow;
- to produce to the Court a full and accurate account of the completed administration of the Estate;
- to produce to the Court, if so required, a full and accurate inventory of the Assets and Liabilities of the Deceased and a full and accurate account of all dealings therewith up to the date of the account.
NB: –
*This write up is meant for general information only and should not be relied upon without seeking specific legal advice.
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