Losing a loved one is difficult enough without confusion over what happens to their property. Early, informed legal guidance helps families avoid many succession disputes in Kenya. Here’s a brief overview of the essentials.
Testate vs. Intestate Succession
The Law of Succession Act (Cap 160) primarily governs succession in Kenya. The Act distinguishes between:
- Testate succession — the deceased left a valid will
- Intestate succession — there is no will, or the will does not dispose of the entire estate
Where a valid will exists, the executor obtains a Grant of Probate confirming authority to administer the estate. Dependants who feel inadequately provided for may still apply for reasonable provision, regardless of the will’s terms.
Without a will, a statutory formula distributes the estate, and the formula varies with the family’s composition (spouse, children, parents or other relatives). It often produces outcomes families don’t expect. For example, a surviving spouse may hold only a life interest, while the capital passes to the children. An interested party petitions the court for Letters of Administration to administer the estate.
The Probate Process, Briefly
Whether testate or intestate, the process generally involves: filing the petition with supporting affidavits, gazettement to allow objections, confirmation of the grant once any objection period lapses, and finally transmission or transfer of the assets to beneficiaries. Some assets such as properly nominated Sacco accounts or insurance policies can pass directly to a beneficiary outside probate, which is worth confirming early.
Common Sources of Dispute
Succession matters often surface long-standing family tensions. Frequent flashpoints include challenges to a will’s validity, inadequate provision claims, disputes over the identity of beneficiaries, concealment of estate assets, and unresolved land or matrimonial property issues.
Why Early Legal Guidance Matters
Delay, poor documentation and informal arrangements cause most succession disputes, not the law itself. Engaging an advocate early, whether to draft a will or guide administration of an estate, can prevent years of costly litigation and preserve family relationships.
If you are planning your estate, administering a loved one’s estate, or facing a succession dispute, our firm can guide you through the process with the sensitivity such matters deserve.
This article is intended for general information purposes only and does not constitute legal advice. For guidance specific to your circumstances, please contact our offices to arrange a consultation.
