It’s never easy to lose a loved one. A part of the grieving process is often a stack of legal issues that need to be sorted out, which begs the question:
What is probate in Kenya?
Why does it matter?
If you’ve ever been curious about what happens to a person’s property and belongings after they pass away, here’s where you’ll find out.
This guide will help you understand what probate in Kenya is, what the process entails, and why it’s an important legal concept.
By the end, you will have all the necessary information about the probate process and be ready to tackle it or even minimize it whenever possible.
What is Probate in Kenya? Definition and Meaning
So, what is probate in Kenya?
Probate is the court-supervised process used to settle your affairs after your death (rather than having them settled outside of the court, like if you have a living trust. That’s when the court intervenes and ensures everything is done fairly and consistently with the law.
That’s what Kenya’s probate is about: determining who gets what, according to the person’s wishes or the law when the person left no will.
Probate is quite simple: probate is a court-supervised process used to settle a deceased person’s estate, whether there is a will or not.
The probate definition gets more complex, ensuring that debt and taxes are paid before any remaining assets are transferred to the appropriate heirs and beneficiaries.
If the person wrote a will, the court reviews it to ensure it is valid. If there’s no will, the court will apply Kenya’s laws to determine who inherits the estate.
His legal process can be daunting, but it provides some order to a messy situation.
Why should probate in Kenya trouble you?
Let us say your loved one left a house, a bank account, or a car. Without a probate process, you might be unable to access or transfer such assets.
Banks and similar bodies will typically demand a court document known as a grant of probate or letters of administration to release funds or alter ownership.
So, when you eventually move on, the last thing you want is your loved ones to go through hardships sorting out your assets.
Understanding probate in Kenya prepares you for what to expect and how to make it easier.
The Process of Probate in Kenya: Steps Explained
Now that you know the definition of probate, let’s discuss how the Kenyan probate process works.
Probate in Kenya is a set of tasks in which the deceased’s estate is treated correctly.
With or without a will, the process typically plays out in court, involving the executor or administrator and occasionally a probate lawyer.
Here is how probate works step by step, and we will go over probate court vs. non-probate assets below.
How Does Probate Work Step by Step?
The probate process in Kenya is straightforward but time-consuming, being a detailed process. Here’s a basic primer on what probate entails:
Step 1: Confirm the Death and Locate the Will
The first step in probate in Kenya is establishing the fact of someone’s death. This typically involves obtaining a death certificate from a funeral director or the Registry of Births and Deaths.
So, you’ll want to determine if the deceased had a will. A will is a legal document stating who should receive the estate, who the executor is, and how the wishes will be performed.
If there isn’t any will, the estate is known as “intestate,” and the court will assign an administrator to take care of things.
Step 2: File a Petition with the Probate Court
The probate process begins when the executor (if there is a will) or a close relative (if there’s no will) files a petition in the probate court to open the estate.
In Kenya, this is typically done at the High Court or a magistrate’s court in the region where the person who has died resided.
The petition seeks a grant of probate (for estates that have a will) or a grant of letters of administration (for estates that do not have a will) by the court.
You will also need to provide documents, such as the death certificate, the will (if there is one), and information on the estate’s assets.
Step 3: Notify Heirs and Creditors
In filing the petition, you must notify anyone with a claim to the estate. That means heirs or beneficiaries designated in the deceased person’s will, or, if there’s no will, their nearest relatives (for example, a spouse or children).
You’ll also need to inform creditors (people or businesses to whom the deceased owed money).
In Kenya, this typically means placing an ad in the newspaper, allowing 30 days for creditors to present their claims.
Step 4: Inventory and Value the Estate
The executor or administrator must inventory the deceased’s assets, including real estate, bank accounts, vehicles, and personal property.
You will also be required to put a value on these assets, which may need professional appraisals, as with land or businesses.
This is important because it decides how much estate administration work needs to be done and whether assets are sufficient to pay debts and taxes.
Step 5: Pay Debts and Taxes
The executor or administrator must pay any debts or taxes owed by the estate before distributing any assets.
That might be loans, overdue bills, or funeral costs. In Kenya, you may also have to pay estate administration taxes, typically based on the estate’s value.
If the estate lacks the cash to cover these expenses, the executor may have to sell assets, such as a car or property, to raise the money.
Step 6: Distribute the Remaining Assets
After paying debts and taxes, the executor or administrator can distribute whatever is left to the heirs and beneficiaries.
Assets are distributed according to the deceased’s wishes if there is a will. If there is no will, Kenya’s Law of Succession Act determines who gets what, with spouses and children often first in line. The court acts like a referee, ensuring everything is fair.
Step 7: Close the Estate
Once everything has been given away, the executor or administrator will file a final report with the court, detailing how everything in the estate was handled.
The court considers all of this and, if all is well, officially closes the probate in Kenya. This step can take several months to a year, depending on how complicated the estate is.
How long does probate in Kenya take?
Simple estates in Kenya might be settled in 6 to 12 months, but more complicated estates (ones with will contests or many assets) can take years.
The trick is staying organized and, if necessary, finding a probate lawyer to help things stay on track.
Probate Court vs. Non-Probate Assets
Everything one owns does not pass through probate in Kenya. The probate court is concerned only with probate assets owned solely by the deceased, such as a house in their name or a personal bank account.
However, certain assets, known as non-probate assets, are handed directly to someone else with no court proceedings. The distinction is the key to understanding probate.
Probate Assets
These are properties, monies, or items that the decedent solely owned. For instance, an individual who owned a piece of land in their name alone would have to go through probate in Kenya before it could be transferred to a beneficiary. This is overseen by the probate court to ensure that the transfer is legal.
Non-Probate Assets
These are assets that go to someone else automatically. For example, if a bank account is jointly owned with a spouse, it goes directly to that spouse. Life insurance policies with a designated beneficiary, or assets held in a trust, also sidestep probate. Understanding ways to bypass probate can save time and money, and we’ll get to that.
The probate court in Kenya plays a big part in ensuring that probate assets are treated appropriately. Still, non-probate assets can simplify the process by lessening what the court must oversee.
Final words
Probate in Kenya may seem intimidating, but it is simply an attempt to ensure that a loved one’s wishes are upheld and their assets are divided fairly.
Knowing how probate works can make things less stressful, whether facing a will or an intestate estate. On top of that, knowing what falls under probate court jurisdiction and what doesn’t will make it easier to plan to streamline the probate process or potentially avoid it entirely.
If you’re dealing with probate in Kenya, take the process step by step. Collect the required documents, be patient, and consider hiring a probate lawyer if the process seems daunting.
If you want to make things easier for your loved ones, consider estate planning now.
Using joint accounts or a trust could save your loved ones much hassle. Probate in Kenya does not need to be scary; when you know what to do, you can easily deal with it.
FAQs:
What is the probate process for a will?
The probate process for a will includes proving the will is valid, appointing a will executor, and the steps listed above, filing a petition, giving heirs notice, appraising the estate, paying debts, and distributing what’s left. The probate court enforces the will’s preferences.
What is probate in simple terms?
Probate in Kenya is a legal process of settling a deceased’s estate. It’s like a map the court uses to ensure assets go to the appropriate people, once debts and taxes have been paid.
Do all estates go through probate?
No, not all estates require probate in Kenya. Probate may not be necessary if they had non-probate assets, such as jointly held property, or a small estate with few assets. For instance, if the estate is valued below Ksh 100,000, it may be eligible for a simplified route.
What does probate mean for beneficiaries?
For heirs and beneficiaries, probate means they will receive what they are entitled to, whether it is money, property, or some other asset. But they may have to wait for the dust to clear on debts and taxes, which may grind on for some time.
How long does probate take?
The timeline for probate in Kenya may range between 6 months and several years, depending on the estate’s size, complexity, and whether or not there are disputes among beneficiaries.
When is probate required?
If a deceased person held probate assets (like property titled in only their name) or institutions like banks demand a grant of probate or letters of administration to release funds, then probate is necessary.
How to avoid probate?
Establishing non-probate assets can help you avoid probate in Kenya. For instance, holding property jointly with a spouse, designating beneficiaries on bank accounts, or establishing a trust may cut out the probate court. The key to making this work is good estate planning.
What is the role of an executor in probate?
The executrix, or executor, for a man’s will is the person in charge of the probate process: filing court documents, paying off debts, and distributing assets. They serve as executor, representing the deceased party, to follow through on their outlined projects.
How much does probate cost?
The price of probate in Kenya is based on the value and complexity of the estate. You will be responsible for court fees, usually in proportion to the estate’s value, and possibly lawyer fees if you decide to hire a probate lawyer. These costs are paid from the estate, not from your pocket.
What does a probate lawyer do?
A probate advocate assists in navigating the process of probate in Kenya. They also prepare and file court documents, resolve disputes, and ensure everything complies with the law. They are handy for complicated estates or when heirs don’t see eye to eye.
