You must have toiled to create wealth if you own property of any nature in Kenya (be it a house, land, or even a small plot). But have you thought about what happens to it when you’re no longer around?
It is not a pleasant thing to contemplate, but you must plan with will and trust in Kenya since this helps your family when you are still alive, and it also ensures that all available resources go as per your wishes when you die.
What Is a Will and Trust in Kenya?
Let’s start with the basics. A will and trust in Kenya are legal tools that allow you to specify how your property and assets will be distributed after you die or if you can no longer handle them on your own.
A will is a statement of disposition of your property, money, or belongings upon your demise. This will is valid only for the assets that die that belong to you, while a trust is a legal arrangement where your assets are managed by someone (a trustee) on behalf of others, such as your kids or spouse.
One of the key differences between a will and a trust is that your loved ones cannot benefit from a will until you die, whereas a trust can be used to manage assets during your life (as in a living trust) or after death.
A living will also provides directives for your medical care, but we’ll touch on property now.
Why does this matter?
In Kenya, if you die without a will, your property may not be distributed to the people you want, and instead may end up causing your family years of expensive legal battles. Here is why these are essential tools needed by anyone who owns property in Kenya.
Advantages of a Will in Kenya
Let’s say you have a nice piece of land in Nairobi or a house in Mombasa. After all, you want that to be passed down to your kids or spouse, correct?
A will and trust in Kenya will facilitate this.
So why is writing a will in Kenya a game-changer?
You Control Who Gets What
Having a will and trust estate, your property is distributed as you want.
Do you want your daughter to be able to have the family house?
Harness the power of nepotism to get your son to farm?
A will allows you to say it clearly. When you don’t have a will, that makes that decision for you; you die intestate succession. Kenyan laws take effect, rendering the government unable to decide what happens with your assets under the Law of Succession Act. That may not align with your desires at all.
Protect Minors with a Will in Kenya
Decide on the guardian to care for your little kids once you are gone. One reason for having a will and trust in Kenya is that you can choose who will be your children’s guardian if you have young kids.
You can also create a special trust to control the timing of their inheritance. You can do it like this: ensure your little tots get cash for college or a house when they turn 21.
Avoid Family Conflicts
We have witnessed families fight for nothing when intentions are not manifest. A will and trust in Kenya also prevents arguments by ensuring that what you want is clear.
Appoint an Executor
A will allows you to name a trusted person (an executor) to ensure your wishes are followed. This individual ensures your property gets to the correct people immediately. If there is no will, the court chooses someone, which can get complicated.
When writing a will in Kenya, you take control of your legacy. This one simple action offers me some peace of mind. But what about trusts? So why are they equally important?
Why a Trust Avoids Probate in Kenya
Now, let’s talk about trusts. In Kenya, a will and trust can function together, but trusts provide protections that wills do not, particularly regarding probate avoidance.
Probate is the court process used to determine if your will is valid and to distribute your assets.
In Kenya, that can take months, not years, and it is publicly known. Probate is a matter of public record, so this is something to keep in mind if you are more private.
Why Does a Trust Avoid Probate in Kenya?
Speed
Trusts are Not Subject to Probate. However, your beneficiaries do not receive the management of assets; instead, they receive a direct handoff from the trustee. This way, your property will be accessible to your family soon.
Privacy
Trusts are kept private, unlike a will. If privacy is important to your family affairs, a will and trust in Kenya with a trust component is the way forward. For instance, this is the case for high-profile families such as the Kenyattas or Delameres, who use family trusts in Kenya to maintain their privacy.
Continuity
A living will and trust may manage your assets in and after life. If you become sick or incapacitated, the trustee takes over without court intervention. This is especially great for landlords and business owners.
Flexibility for Complex Estates
A family trust in Kenya is ideal if you have multiple properties, a blended family, or business interests. It allows you to specify where your assets go with rules like not giving them to the kids until they have demonstrated that they can be responsible with their money.
Here is an overview of the tax benefits of trusts in Kenya
The following offers a broad understanding of the tax benefits available to trusts in Kenya:
Reduction in Tax Bill
Incorporating A Will and Trust in Kenya. The significant tax savings are another reason for having a will and a trust in Kenya. Capital Gains Tax (CGT), stamp duty, and income tax on rental properties are just some of the charges that have to be paid by people who own a property. Here is a way that choosing the right trust can save you money.
Capital Gains Tax (CGT)
As in some family trusts, you may circumvent CGT by transferring property to a trust. See a trust and wills attorney near me as to how this should be handled.
Stamp Duty
Trusts can sometimes reduce stamp duty liabilities when transferring property to potential beneficiaries.
Income Tax Exemptions
Your trust could be tax-exempt if set up for charitable reasons or family backing.
These tax advantages of trusts in Kenya can be significant, especially for persons with valuable properties or businesses. A Kenyan family trust is duly registered and enjoys legal recognition, adding a different layer of security to your assets.
What Happens If You Don’t Have a Will or Trust in Kenya
The above are the dangers of not having a will and trust in Kenya; let us discuss them. If you pass away without a will (intestate), then the succession laws of Kenya, Intestacy succession, take effect. Here’s what that means:
The Court of Laws
Your property is divided according to a fixed formula per the Law of Succession Act. Maybe your spouse is getting some, and the kids are getting a share. If you had no spouse or kids, it could still go to relatives many times removed that you don’t know.
Delays and Costs
Your family will have to probate your estate, which can take years and incur legal fees. This could be a disaster if your property is your family’s livelihood.
Family Arguments
Without an estate plan with a will and trust, your family may bicker over what everyone shall receive. I have seen brothers fight over one piece of land; that is how I have heard people tell stories.
No Protection for Minors
If you have young kids, the court will appoint a guardian for you. A trust can protect your kids’ inheritance from being misappropriated.
Avoid intestacy in Kenya, spare your family the heartache. A will and trust in Kenya ensure this happens one way or the other.
Who requires a trust in Kenya?
You might wonder, “Do I need a trust or is a will enough? Great question. You do not need to be super-rich for a will and trust in Kenya. Who gets a Trust in their Plan?
Property Owners With Complex Estates — If you own multiple properties, businesses, and investments, having a trust makes it easy, primarily for estate planning.
Blended Families: If you have children from multiple marriages or partners, a family trust in Kenya provides a way to guarantee everyone is reasonably cared for.
Concerns about Privacy: If privacy is important and you do not want your estate details readily available to the public, trust is necessary.
Business Owners: A trust ensures that your business can continue to operate seamlessly for the benefit of family or partners.
Parents with young kids: Put inheritance in trust until the child reaches maturity (trust ushering assets to be received by your children).
For example, Nicholas Biwott ran his large estate through family trusts in Kenya. And your family can avoid probate, even if you are not leaving behind many assets.
Requirements on How to Make a Will in Kenya
Starting to write a will in Kenya. Well, it is not as difficult as one might think, but there are some rules that you have to follow to be correct on legal grounds:
You Are at Least 18: Wills are for grown-ups.
Sound Mind: You have to be in your proper state of consciousness.
It Must Be in Writing: Your will must also be in writing.
Witnesses: The will needs to be signed before two people who are not beneficiaries.
A Signature: You have to sign the will, or it can be signed on your behalf in your presence if you cannot do so.
An attorney near a trust and will attorney can also help you create a valid will that fulfills all such requirements. They will also help ensure that your will and trust in Kenya are well-defined and legally valid.
Why an Estate Planning Lawyer in Kenya is a Good Idea
Estate planning in Kenya is easier with professional help. He is a trust and wills attorney in Kenya. They can:
- Whether you need a will, trust (or both).
- Your will and estate trust are valid.
- Change your will or trust if there is a change in your situation (for example, you got married or acquired more property).
Check local firms like Chepchieng and Company Advocates or Kubwa Advocates to find trusts and wills near me. They can also walk you through the process and answer questions that you have.
FAQs
Q: How do wills and trusts work in Kenya?
It takes effect upon your death and is subject to probate. A trust can operate during or after your life and is used instead of going through a probate process, providing confidentiality and legal speed.
How frequently should I be refreshing my will?
Check your will and trust in Kenya regularly, every few years or after a significant life event like marriage, divorce, or property purchase.
Can I DIY a Will?
Yes, but a Will and Trust Lawyer will ensure your Will is legally valid and covers all areas you want.
When Should Someone Consider a Trust?
When it comes to wills and estate planning, anyone with property, young kids, or a relatively complex family situation should investigate having their own.
Take Action Today
You have made it this far, and… buying a property in Kenya is a big deal. Your legacy is too important to be left to fate. Having a will and trust in Kenya helps protect your family, ensure that your wishes are honoured when you pass away, and provide for managing your assets as you want. If you are creating something low-key, like a will vs. setting up a living will and trust, the reality is that the peace of mind is worth more than what you paid.
