Losing a loved one is an incredibly difficult experience. During such times, legal matters like succession can seem overwhelming. However, understanding the process can provide some comfort and clarity.
Succession planning is a crucial aspect of estate management, ensuring that a person’s assets are distributed according to their wishes or, in the absence of a will, according to the law. In Kenya, the Law of Succession Act, Cap 160, governs both intestate (without a will) and testate (with a will) succession.
This guide provides a detailed, Kenyan Succession Step by Step overview of both processes, helping you navigate the complexities of succession in Kenya.
Intestate Succession in Kenya
Intestate succession occurs when a person dies without leaving a valid will. The distribution of the deceased’s estate is then governed by the Law of Succession Act.
Step 1: Petition for Letters of Administration
The first step in intestate succession is to petition the court for a grant of Letters of Administration. This legal document authorizes the petitioner to manage the deceased’s estate. The petitioner, usually a close relative, must file the following documents:
Petition (Form P&A 80)
Affidavit (Form P&A 5)
Affidavit of justification (Form P&A 11 and P&A 12)
Certified copy of the death certificate
Identity cards of the petitioner and sureties
Proof of ownership of the deceased’s property (e.g., title deeds, logbooks)
Step 2: Publication in the Kenya Gazette
Once the petition is filed, a notice is published in the Kenya Gazette to inform the public and invite any objections. Interested parties have 30 days to lodge objections.
Step 3: Hearing and Grant of Letters of Administration
If no objections are raised, or if any objections are resolved, the court grants the Letters of Administration. The petitioner becomes the personal representative of the estate, responsible for managing and distributing the assets.
Step 4: Inventory and Valuation
The personal representative must compile an inventory of the deceased’s assets and liabilities and file it with the court. This includes valuing the estate to determine its total worth.
Step 5: Distribution of the Estate
The estate is distributed according to the rules of intestacy. The surviving spouse and children are given priority, followed by other relatives. The specific shares depend on the family structure:
Monogamous Unions: The surviving spouse receives personal and household effects, 20% of the residue, and a life interest in the remaining estate. The children inherit the rest.
Polygamous Unions: The estate is divided among the houses, with each house receiving a share proportional to the number of children.
Testate Succession in Kenya
Testate succession occurs when a person dies leaving a valid will. The will outlines how the deceased’s estate should be distributed.
Step 1: Application for Grant of Probate
The executor named in the will applies for a grant of probate, which confirms the validity of the will and authorizes the executor to administer the estate. The following documents are required:
Petition (Form P&A 78)
Affidavit (Form P&A 3)
Original will and two photocopies
Certified copy of the death certificate
Step 2: Validation of the Will
The court examines the will to ensure it meets legal requirements. This includes verifying that the will was made voluntarily, the testator had the capacity to make the will, and it was properly executed.
Step 3: Publication in the Kenya Gazette
A notice is published in the Kenya Gazette to inform the public and invite any objections. Interested parties have 30 days to lodge objections.
Step 4: Hearing and Grant of Probate
If no objections are raised, or if any objections are resolved, the court grants probate. The executor is then authorized to manage and distribute the estate according to the will.
Step 5: Inventory and Valuation
The executor must compile an inventory of the deceased’s assets and liabilities and file it with the court. This includes valuing the estate to determine its total worth.
Step 6: Distribution of the Estate
The executor distributes the estate according to the terms of the will. This includes paying any debts and taxes before distributing the remaining assets to the beneficiaries named in the will.
Key Considerations in Succession
Legal Compliance: Ensure all legal requirements are met to avoid disputes and delays.
Fair Distribution: Follow the rules of intestacy or the terms of the will to ensure fair distribution of the estate.
Timely Action: Act promptly to avoid penalties and ensure the smooth administration of the estate.
Legal Representation: Engaging a knowledgeable attorney can significantly ease the succession process, ensuring that all legal requirements are met and reducing the likelihood of disputes.
Dispute Resolution: If disagreements arise among heirs or beneficiaries, mediation or legal intervention might be necessary to resolve conflicts and ensure fair distribution.
Updating the Will: To avoid intestate succession, it is advisable to regularly update your will to reflect changes in your assets or family circumstances.
Conclusion
Navigating intestate and testate succession in Kenya requires a clear understanding of the legal processes and requirements. By following this step-by-step guide, you can ensure the fair and efficient distribution of a deceased’s estate.
For more detailed legal advice or representation, please contact our experienced legal team.
To learn more, see the Law of Succession Act, Cap 160.
