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THE PROCESS OF INHERITANCE IN KENYA AND EVERYTHING ELSE YOU NEED TO KNOW

inheritance in Kenya 2

The Law of Succession Act

During the process of inheritance in Kenya, the Law of Succession Act is the main law in Kenya that explains how a deceased person’s property is distributed.

This law applies whether the person left a will (testate) or did not leave a will (intestate). The Act was created to ensure that everyone has clear rights regarding the inheritance of property in Kenya.

Key Points of the Act

1.  Equal Rights for All Children, Girls or Boys

One important part of the Law of Succession Act is giving all children equal inheritance rights.

This means that whether you are a son or a daughter, you have the same right to inherit from your parents.

This includes biological children, adopted children, and even children born out of wedlock.

Definition of Children according to the Laws of Kenya

The Act defines “children” broadly. It includes biological and adopted children, as well as step-children and any child recognized by the deceased as their own.

This ensures that all dependents can claim a share of the estate during inheritance in Kenya.

2.  Intestate vs. Testate Succession: What is the Difference?

The Act explains what happens when someone dies without a will (intestate) and when they have a will (testate).

If there is no will, the estate is shared according to a set order, starting with the spouse and children.

The estate is divided according to what the deceased wanted if there is a valid will.

3.  Customary Law vs. Statutory Law

While the Law of Succession Act provides clear rules for inheritance, many communities in Kenya also follow customary laws, which may favour male heirs over female heirs.

Statutory Law Takes Precedence

Statutory law usually wins when customary laws conflict with the Law of Succession Act.

This means that even if traditional practices prefer male heirs, the law ensures that daughters have equal rights to inherit property.

Promoting Gender Equality

The Law of Succession Act supports gender equality by stating that sons and daughters can inherit from their parents equally.

This helps challenge traditional beliefs that may limit women’s rights during inheritance in Kenya.

Daughters’ Rights

The Law of Succession Act clearly states that daughters can inherit property just like sons, which goes against some traditional beliefs.

Legal Recognition

The law recognizes daughters as rightful heirs, ensuring they receive an equal share of their parent’s estate and their brothers.

This legal recognition is important for promoting fairness and empowering women in families and communities during the inheritance process in Kenya.

Protection against Discrimination during Inheritance in Kenya

The Act protects daughters from unfair practices from customary laws or societal norms.

By guaranteeing equal rights for all children, including daughters, the law helps create a fairer system for inheritance.

The Process of Inheritance in Kenya

Court Involvement During Inheritance in Kenya

The court plays a crucial role in managing how a deceased person’s estate is distributed.

This ensures that the inheritance process in Kenya is fair and follows the inheritance laws.

Granting Probate and Letters of Administration

When someone dies and leaves a will, the court grants “probate,” which confirms the will’s validity and allows the executor to manage the estate according to the deceased’s wishes.

If there is no will, the court issues “letters of administration.” This document gives someone the authority to manage and distribute the estate, usually prioritizing close relatives like spouses or children.

Administrator Appointment

If a person dies without a will, the court appoints an administrator.

Who Gets Appointed?

The court typically chooses an administrator from close family members, such as spouses or children.

This person is responsible for handling the estate, which includes collecting assets, paying debts, and distributing property to beneficiaries.

Duties of the Administrator during Inheritance in Kenya

The administrator must act in the best interests of all beneficiaries and ensure that everything is done legally and fairly. They cannot distribute any assets until they receive confirmation from the court.

Children’s Shares

The Law of Succession Act states that all children are entitled to equal shares of their parent’s estate, regardless of their circumstances.

Equal Rights for All Children

This includes children born out of wedlock, adopted children, and stepchildren. Every child has the same right to inherit from their parents, ensuring fairness in distribution.

No Discrimination

The law protects children’s rights to inherit equally, meaning that whether a child is male or female, married or unmarried, they will receive an equal share of their parent’s property.

Importance of Succession Planning

Succession planning is preparing to distribute a person’s estate after their death. Ensuring that property and assets are passed on smoothly and fairly is essential. Here are some key reasons why succession planning is important.

1.  Avoiding Disputes

A clear succession plan outlines how a person’s assets will be distributed after death. This clarity helps to minimize misunderstandings and disagreements among family members during inheritance in Kenya.

Without writing a will or an estate plan, family members may have different opinions about who should inherit what, leading to disputes that can escalate into lengthy and costly court battles.

2.  Reducing Stress

Families can avoid the emotional stress and tension that often arise during inheritance disputes by having a well-defined plan. This allows loved ones to focus on grieving rather than fighting over property.

3.  Preserving Family Legacy

A good succession plan allows the family’s values and traditions to be handed down from generation to generation.

This allows future generations to know the history and identity of their bloodline, which in turn can solidify family ties.

4.  Tax Efficiency

A well-designed succession plan can minimize tax bills for both the donor and the successor. With careful estate planning, families can preserve more of their wealth for posterity.

5.  Asset Protection

A well-established succession plan shields family assets from disputes or claims once a family member dies. That is especially important in Kenya, where inheritance disputes often result in costly wars of attrition in the courts.

What Happens to Unclaimed Assets During Inheritance in Kenya

Valuable Assets Left Behind

Many people die without a clear succession plan, leaving valuable assets unclaimed. These can include property, bank accounts, investments, and other belongings.

When there is no clear direction on distributing these assets, they may become stuck in legal limbo, causing frustration for potential heirs.

Facilitating Claims

A clear succession plan gives beneficiaries the necessary information to claim their inheritance. It ensures everyone knows what they are entitled to and how to claim it.

Legal Advice from Lawyers in Kenya

Inheritance laws can be complicated, especially when dealing with multiple assets, debts, or family dynamics.

Seeking legal advice helps individuals understand their rights and responsibilities under the law.

A lawyer can assist in creating a comprehensive succession plan that complies with legal requirements and reflects the individual’s wishes.

Legal advice is crucial for ensuring all aspects of the succession plan meet legal standards. This includes drafting wills, establishing trusts, and understanding tax implications.

From a licensed and reliable lawyer in Kenya, proper legal guidance reduces the risk of future challenges to the estate and ensures that the distribution process goes smoothly.

Conclusion

Succession planning is vital for anyone who wants to ensure their assets are distributed according to their wishes after death.

By having a clear plan, individuals can avoid family disputes, ensure that valuable assets are not left unclaimed, and navigate the complexities of inheritance laws with the help of an attorney in Kenya.

This proactive approach provides peace of mind for the individual and their loved ones.

Written By:

James Chepchieng

Advocate of the high court of kenya

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