SUCCESSION IN KENYA

WHAT IS THE PROCEDURE?

Succession refers to the process of transferring property of a deceased person to those entitled to benefit by inheritance. This is made possible through two ways:

a)   If the deceased person had made a valid Will

b)   Implementation of the Law, in this case; the Law of Succession Act.

Where the deceased has not left behind a Will, the process of succession falls under Intestacy. This can also happen if there is a Will but then it is invalidated by a court of Law, or a testator/testatrix revokes their Will and does not execute another before they die.

WHAT THEN, IF THE DECEASED DIES INTESTATE.

The beneficiary/beneficiaries are entitled to file a petition in Court to be issued with a Grant of Letters of Administration Intestate.

There are Instances where a partial Intestacy may arise where some property of the deceased has been distributed in a Will. In the event an executor successfully proves a valid Will exists, the Letters of Administration in respect to the Intestate Estate shall be granted to such executor (s).

The Succession Act provides the order of preference for the Petitioners (Applicants) who are eligible for the Grant of Letters of Administration, as follows;

1)   Surviving spouse or spouses alone or in association with other beneficiaries

2)   Any other beneficiaries entitled to the estate in accordance with priority as by law established.

3)   Public Trustee; and

4)   Creditors

 

REQUIREMENTS TO MAKE AN APPLICATION OF ANY GRANT OF REPRESENTATION

Any application for a Grant of representation may be prepared by an Advocate, signed by the petitioner/applicant, and duly witnessed. The following information must be provided in the Application:

1.   Full name of the deceased

2.   Date and place of death

3.   Place of residence at the time of death

4.   Relationship of the applicant/petitioner with the deceased if any

5.   Whether or not the deceased had left a valid Will.

6.   Name and address of all the beneficiaries of the deceased who are:      

·       Surviving spouse or spouses

·       Children

·       Parents

·       Siblings

·       Children of the siblings if siblings are deceased

 

7.   An inventory of the Assets and liabilities of the deceased and/or any other information as by law required.

PROCEDURE FOR THE COURT PROCESS

                   I.        Filing of Documents in Court.

The relevant documents must be filed in the appropriate court i.e. High Court if the Value of the estate surpasses 20 million and if less than 20 million, filing is done in the lower court. Once the documents are presented to the court registry they are approved and assessed for filing fees. The crucial documents include:

ü  Death Certificate must be obtained

ü  Letter from the local chief; this clarifies the deceased’s spouse(s) and beneficiaries

ü  Petition for Grant of Letters of Administration

ü  Guarantee by personal sureties- this is meant to ensure that the Applicant/Petitioner to the Grant fulfills the mandate as promised in the petition.

                 II.         Payments.

Following the assessment of fees, an invoice is issued by the court for the documents to be filed and a separate payment is made for the gazettement fee.

 

               III.        Notice in the Kenya Gazette.

The Court will gazette the petitions for grant of Letters of Administration inviting any persons with interest in the deceased’s Estate to raise an objection if any within thirty days from the date of publishing the Gazette.

 

               IV.        Issuance of Grant of Letters of Administration.

Once the 30-day Notice lapses with no objection, the Court will issue the petitioner with the Grant of Letters of Administration essentially declaring such petitioner (s) as administrators of the Estate. In the event an objection is raised the court will have to hear the matter.

 

                 V.        Confirmation of Grant.

After six months from the date of issuance of the Grant of Letters of Administration. It is required of the Administrator to apply for confirmation of the Grant. This is done by indicating to the court how the deceased’s property will be distributed among the beneficiaries. All beneficiaries should agree on the mode of distribution keeping in mind fairness, to avoid disputes that arise at this stage.

 If the mode of distribution is agreed upon by all beneficiaries, the process of transfer of the properties to each beneficiary begins with the administrator(s) signing the transfer forms and any other necessary documents.

 

wangukimure-Advocate; 0716912966; kellenkimure@gmail.com

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