The intestate succession process in Kenya is defined as distributing a person’s assets and property when the person dies without writing a will. The process is governed by the law of succession since the deceased has no power over how the property is distributed among the beneficiaries.
The law of Succession in Kenya provides for the person considered as the beneficiaries of the property, which include the deceased’s spouse if one is alive, the surviving child or children, and any other blood relatives of the spouse by the type of family of the deceased.
In case the spouse is alive, one is granted the right to access, use, and benefit from the deceased’s estate’s personal household and life interest. If the deceased has no surviving child or spouse, the property is distributed to the deceased blood relatives, parents or siblings.
The law provides that succession in the polygamous marriage is to be shared among each house, taking into consideration the number of children in each household.
Legal Steps of Intestate Succession Process in Kenya:
- Appointment of an administrator is vital for managing and distributing the estate.
2. The law grants the right to petition in order of priority: spouse, children, parents, siblings, step-siblings, blood relatives, the public trustee or the creditor of the deceased. The letters grant legal authority to manage the estate of the deceased person. The documents required are as follows;
- A letter from the area chief listing all beneficiaries of the property, their ages, and their relationship to the deceased.
- A certified copy of the death certificate of the deceased.
- National IDs of the persons petitioning in court.
- National IDs or Birth certificates of the beneficiaries.
- Full inventory of all assets and liabilities of the deceased.
- Guarantors of the deceased estate
Once the petitioners have applied to the court for the grant of letters of administration, an application is published in the Kenya Gazette for 30 days.
The publication serves the purpose of notifying the public of the intention to administer the estate, allowing anyone with interest to raise objections and ensure all beneficiaries are aware to avoid being left out.
3. If no objection is raised or already resolved, the court issues a letter of administration for six months, where the administrator is required to manage the estate of the deceased.
4. Confirmation of grant by the court- after six months have elapsed since the issuance of the letter of administration without any objection, the personal representative or administrator of the beneficiaries makes an application of confirmation to the court seeking approval of the distribution of the property to the beneficiaries.
5. The application should contain all the beneficiaries’ names and the shares proposed to each beneficiary. Suppose the court is content with the application. In that case, it issues a certificate of confirmation of the grant, which empowers the administrator to distribute the property among the beneficiaries according to the proposed mode of distribution.
Moreover, the law expects the administrator to complete the administration of the estate within six months of confirmation of the grant of letters of administration.
They also have to give the court a full and accurate inventory of the assets and liabilities of the deceased, a full and accurate amount of the dealings, and the completed administration as provided under the law.
Distribution of the Estate During the Succession Process in Kenya
Once a grant has been confirmed, the administrator distributes the estate according to the specific terms outlined in the confirmation. This includes the transfer of ownership of the deceased assets, such as land, vehicles, bank accounts, and shares, to the relevant beneficiaries as per the court’s final order.
If there are debts and liabilities, the administrator must settle them, including paying off creditors, taxes, and any other financial obligation as provided for in the court’s final order.
The court may require a final account for approval depending on the estate’s circumstances and the court’s direction.
Once the distribution is completed and all the obligations have been met, the administrator is discharged from the legal responsibilities regarding the deceased’s estate.
Where there is a trust created to be managed, the administrator will be required to continue effecting their service until the life interest ends or adulthood in case it involves guardianship for minors.
Intestate process ensures that the deceased proper is distributed according to the law, prioritizing immediate family and considering the needs of the dependents while allowing legal avenues in case an issue arises on the administration of the estate of the deceased.
The Kenyan system aims to balance the inheritance, ensure equitable distribution, and protect the beneficiaries’ rights.
How Does the Law of Succession Act Cap 160 Protect the Interests of all Rightful Beneficiaries?
The Law of Succession Act (Cap 160) in Kenya provides a structured framework for the distribution of a deceased person’s estate, ensuring the protection of all rightful beneficiaries during the succession process in Kenya. Here are the key ways it safeguards their interests:
Protection of Beneficiaries Under the Law of Succession Act
Clear Rules for Distribution:
The Act outlines specific rules for both testate (with a will) and intestate (without a will) succession, ensuring that beneficiaries know their rights and entitlements. In intestate cases, the estate is distributed primarily to the surviving spouse and children, promoting fairness and preventing arbitrary distribution.
Rights of Surviving Spouses and Children:
A surviving spouse is entitled to personal and household effects, a percentage of the estate, and a life interest in the remaining property. This means they can benefit from the estate during their lifetime, with ownership ultimately passing to the children. This provision helps secure the financial well-being of spouses and children after the loss of a family member during the succession process in Kenya.
Provisions for Polygamous Families:
The Act includes provisions for distribution in polygamous unions during the succession process, ensuring that all children have equal rights to inherit from their deceased parent. This is crucial in managing potential conflicts among beneficiaries from different marriages.
Court Oversight:
The process requires court involvement for grants of representation (either probate or letters of administration). This oversight helps prevent mismanagement or misappropriation of the estate by administrators, as they must account for their actions to the court.
Power of Appointment:
The surviving spouse has the power to appoint portions of the estate to children as immediate gifts. If this power is unreasonably withheld, children can petition the court to enforce their rights, providing an additional layer of protection against potential abuse.
Legal Framework for Disputes:
The Act provides mechanisms for resolving disputes among beneficiaries. If disagreements arise regarding the distribution or administration of the estate, parties can seek judicial intervention to ensure fair treatment according to legal standards.
Affidavit Requirements:
Applicants for letters of administration must submit affidavits proving their solvency and ability to fulfill their duties as administrators. This requirement helps ensure that only responsible individuals manage the estate, protecting beneficiaries from potential mismanagement.
Final Words
Navigating the complexities of the Law of Succession in Kenya can be challenging, given the various legal stipulations and potential disputes that may arise among beneficiaries.
Whether dealing with a testate or intestate estate, understanding your rights and responsibilities is crucial to ensuring a fair and equitable distribution of assets. Engaging a qualified lawyer is essential in this process; they can provide invaluable guidance, help you interpret the law, and navigate court procedures effectively.
