The Law of Succession Act and the provisions of the Civil Procedure Act govern property and land inheritance laws in Kenya.
These laws provide equality amongst Kenyans and foreigners, where foreigners have an equal right to inherit property and buy and sell property in Kenya, irrespective of nationality or religion.
This article will give detailed information on foreigners handling inheritance property in Kenya.
Legal Framework on Inheritance in Kenya as a Foreigner
Immovable Property
The succession in Kenya of immovable property, i.e. land and buildings, is governed by Kenyan law, irrespective of the deceased’s domicile (country of permanent residence) at the time of death.
Movable Property
The law of the deceased’s domicile ( country of permanent residence) will apply to movable property (such as bank accounts or vehicles)
Constitutional Rights During the Inheritance Process in Kenya as a Foreigner
Every person, including all foreigners, has the right to own property, according to Article 40 of the Kenyan constitution. Article (65), however, limits foreigners to leasehold tenure not exceeding 99 years.
What are Some Considerations For Foreigners During the Inheritance Process in Kenya?
For foreigners in Kenya, the inheritance process is key to helping divide an estate after a property owner has passed on. Here’s a general overview of how the inheritance process in Kenya happens:
Probate Requirements During the Inheritance Process in Kenya
If a foreign citizen dies and leaves a valid will, including their Kenyan property, it must be presented to a Kenyan Court.
So, the court will accept the will’s validity and allow the named executor (the individual who manages the estate) to comply with the directions contained in the will.
The executor or lawyer will administer the estate according to Kenyan laws to properly and legally do everything.
What Happens Without a Will?
This is an intestacy when the deceased does not leave a will. Kenyan intestacy laws apply when someone passes away without a will, offering guidance on dividing the deceased’s assets among the survivors.
This can cause complications because there are legally prescribed rules about who gets what when someone dies, and they may not correspond to what family members expect or want.
What is Resealing?
In some cases, a foreigner who has died and whose estate has been probated in their country of origin can use that document in Kenya. But it has to undergo a process known as “resealing.”
Resealing involves the Kenyan court accepting the foreign grant as valid, which means the executor named in that document can administer the estate in Kenya as if they had been granted probate locally.
The Resealing Process
In Kenya, the executor or their lawyer has to file a lawsuit with the High Court to reseal the foreign grant.
Such documents include proof of death and a foreign grant, among others. The document will then be stamped or sealed by the court, indicating that it is valid and can be used in Kenya once it is signed.
This is important as foreign grants are not recognized for registering Kenyan assets without resealing.
The tax implications of the inheritance process of property owned by a foreigner in Kenya are mainly determined by Kenyan law. Here’s a simplified overview:
Key Tax Considerations
No Estate Tax
Kenya has no estate or gift tax. This means that when a foreigner dies leaving the property in Kenya, the beneficiaries are not liable to any tax on the total value of the inherited property itself.
Capital Gains Tax (CGT)
While there’s no inheritance tax, beneficiaries could face capital gains tax when selling the inherited property.
This rate is 15% of the net profit on the sale, based on the property value at the time of inheritance.
Stamp Duty Exemption
Most property inherited by a beneficiary is exempt from the payment of stamp duty in Kenya.
That means that if you transfer ownership of inherited property, no additional taxes are charged when they take ownership of the property.
Legal Assistance
Probation can be complicated and so much more so for foreigners with different legal systems.
This is only so much information; it is best to consult a lawyer in Kenya who is familiar with probate and succession matters in Kenya.
These professionals can help them through every stage of the process, ensuring they comply with local laws and avoid possible problems.
Settlement of Assets During the Inheritance Process in Kenya
Kenyan law sets clear rules governing how their assets should be allocated if someone dies without a will, also known as intestacy.
Survived by a Spouse, Children
If the decedent left a spouse (husband and wife) and also children — the decedent’s assets shall be distributed as follows:
Personal and Household Goods
All personal effects and household goods will go to the spouse. These are predominantly items used in daily living, such as furniture, clothing and other personal effects.
Life Interest in the Balance of the Estate
The spouse obtains what is known as a “life interest” in the estate balance. This allows them to live in or use the property (such as a house) for their lifetime. But they don’t own it outright — they’re a trustee for the children.
This means that they run the property for the benefit of the kids until they are older or until certain conditions are satisfied.
Division After the Death or Remarriage of a Spouse — The property can be divided among children if the spouse is dead or if the spouse remarries.
This way, all children inherit an equal share of their parent’s estate when the time comes.
Share The Wealth
The estate will be shared equally among all remaining children. Each child will receive a split of their parent’s assets. For example, if there are three children, each receives one-third of the estate.
Key Points to Remember During the Inheritance Process in Kenya
No Will, Follow the Law
When someone dies without a will, the government will determine how assets will be divided under Kenyan law.
This ensures that nothing is done indiscriminately but according to a set standard.
Family Structure Matter
The distribution rules depend on who survives the deceased. It is a common question, and having a spouse alters asset divisions significantly instead of just children.
Kids Are Sorted
Because the life interest is given to a spouse, the children inherit it after death.
Equality
It ensures that all children within a family receive equal inheritance, promoting fairness among siblings.
Importance of Having a Will as a Foreigners owning property in Kenya
Makes Things Easy
A will helps to handle the person’s property after their death easily. It spells out exactly who gets what, which can reduce confusion and delays during the inheritance process in Kenya, the legal process through which an estate is settled.
Minimizes Disputes
A will can reduce disputes between family members or beneficiaries over who gets what during the inheritance process in Kenya.
Where everyone is aware of the deceased’s wishes, the risk of quarrels is reduced, and this is particularly relevant where beneficiaries live in different countries.
Avoids Complex Legal Processes
Upon a foreigner’s death, if they die intestate (without a will), the law mandates that all beneficiaries, including the heirs and legatees (those named in the will), must agree on the division of the estate and apply to the High Court for it to be announced.
This process is time-consuming and cumbersome, particularly for beneficiaries not based in Kenya.
Helps Comply with Local Laws
By having a will, foreigners can help guarantee that Kenyan laws will distribute their properties.
That is important because the inheritance laws of other nations can differ dramatically from those of theirs, and a will drives the distribution of their estate to comply with local laws.
Safeguards the Interests of Beneficiaries
A will allows foreigners to protect their beneficiaries’ interests. They can determine who receives what regarding their possessions, ensure their wishes are fulfilled, and that their loved ones are provided for in a way they deem appropriate.
Conclusion
These rules will help families navigate through the emotional and legal process of losing a loved one without a will during the inheritance process in Kenya.
Anyone who wishes to clarify what they want to happen with their estate after they die should always consider making a will to make life easier for their loved ones.
