NAVIGATING SUCCESSION IN KENYA

The transmission of property and assets upon the death of an individual is a sensitive legal process governed by a rigorous statutory framework. In Kenya, the Law of Succession Act (Cap 160) serves as the primary legislation, complemented by the Probate and Administration Rules. For beneficiaries and executors, understanding the procedural nuances is essential to ensure the lawful distribution of an estate. Central to this process is the distinction between Letters of Probate and Letters of Administration two legal instruments that, while achieving the same end goal of estate distribution, arise from different testamentary circumstances.

All matters of succession in Kenya are primarily regulated by the Law of Succession Act (Cap 160). Under Section 2, the Act applies to all forms of succession (testate and intestate) for all persons in Kenya, subject to specific exceptions for Muslims (who are governed by Islamic Law in matters of succession under Section 2(3) and (4)). The Act provides the High Court with the jurisdiction to hear and determine applications for the administration of estates, although the Magistrates’ Courts Act, 2015 grants lower courts limited jurisdiction based on the pecuniary value of the estate.

The primary distinction between these two instruments lies in the existence of a valid Will. For Probate, Section 3 of the Act, Probate is defined as a certificate issued by a court of competent jurisdiction to the effect that the last Will of a deceased person has been proved and registered in the court. Probate is only sought when the deceased died “Testate” (having left a valid Will). The person applying for Probate is the Executor, who is explicitly named in the Will to carry out the deceased’s wishes.

On the other side, letters of Administration are used if a person dies “Intestate” (without a valid Will), or if a Will exists but fails to name an executor or the named executor is unable or unwilling to act, the court issues Letters of Administration. The applicants in this scenario are known as Administrators, and their priority for appointment is strictly governed by Section 66 of the Act, which prioritizes the surviving spouse, children, and other relatives in a specific order of preference.

The Process of Securing a Grant of Probate

The process of proving a Will is governed by Part VII of the Law of Succession Act and the Probate and Administration Rules. The Executor files a petition in court supported by an affidavit and the original Will. Under Rule 7, the petition must state the date of death, the domicile of the deceased, and the names of all executors.

 Once the petition is filed, Section 67 requires the Registrar of the Court to publish a notice in the Kenya Gazette. This notice serves as an invitation to any person who may wish to object to the Grant (enter a caveat) to do so within a period of thirty (30) days. In cases of urgency where the estate assets are at risk of perishing or being wasted, the court may issue a temporary grant for the preservation of assets under Section 67(1) before the full Probate is finalized referred to as Grant Ad Colligenda Bona.

The Process for Letters of Administration

When there is no Will, the procedure follows a similar path but involves additional safeguards to protect dependants. Under Section 56, the court has the discretion to appoint up to four administrators. Preference is typically given to the surviving spouse, followed by children, then parents, and so on as per section 66. To prevent “property grabbing,” Rule 26 requires that all persons with an equal or prior right to the grant must consent to the appointment of the proposed administrators. Furthermore, under Rule 29, administrators are often required to provide Sureties (guarantors) to ensure they do not mismanage or abscond with the estate’s assets. In intestate succession, the distribution of assets is not at the discretion of the administrators but is strictly dictated by Part V (Sections 32-42) of the Act, which provides specific formulas for how assets are divided between a surviving spouse and children.

Confirmation of the Grant

It is a common misconception that obtaining a Grant (either Probate or Letters of Administration) allows for immediate distribution. Under Section 71(1) of the Act, no grant shall be confirmed until the expiration of six months from the date of the grant. After six months, the Executor or Administrator must apply for the Confirmation of the Grant. This involves submitting a detailed “Schedule of Distribution” to the court. If the court is satisfied that the proposed distribution is fair and follows the law, it issues a Certificate of Confirmation of Grant. Only after this certificate is issued can assets such as land titles or bank accounts be formally transferred to the beneficiaries.

Conclusion

The probate process in Kenya is designed to be transparent and protective of both the deceased’s wishes and the dependants’ rights. Whether proceeding with a Will through Probate or navigating Intestacy through Letters of Administration, the role of the court is to oversee a just and orderly transition of wealth. For practitioners and families, strict adherence to the timelines and procedural requirements of the Law of Succession Act is the only way to avoid the long-standing, bitter legal battles that often characterize inheritance in Kenya.

For more information or assistance in succession matters in Kenya, please contact us on info@aowangaadvocates.com or +254794600191

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