Intestate Succession in Kenya: A Complete Guide to Property Distribution When Someone Dies Without a Will
- Muhoro & Gitonga Associates
- 4 days ago
- 11 min read
Table of Contents
Introduction to Intestate Succession in Kenya
Legal Framework Governing Intestate Succession in Kenya
Who Qualifies as Dependants Under Kenyan Law?
How Property is Distributed Under Intestate Succession
Distribution When the Deceased Left a Surviving Spouse and Children
Distribution When the Deceased Left Children But No Spouse
Distribution When the Deceased Left a Spouse But No Children
Distribution When the Deceased Left No Spouse or Children
Rights of Adopted and Illegitimate Children in Intestate Succession
The Role of the Court in Intestate Succession
Steps to Apply for Letters of Administration Intestate
Timeline for Obtaining Letters of Administration
Common Challenges in Intestate Succession Cases
How to Avoid Intestate Succession: Importance of Writing a Will
Frequently Asked Questions (FAQs)
1. Introduction to Intestate Succession in Kenya
When a person dies without leaving a valid will in Kenya, their estate is distributed according to the rules of intestate succession. This process is governed by the Law of Succession Act, which provides a clear framework for determining who inherits the deceased's property and in what proportions.
Understanding intestate succession is crucial for families navigating the loss of a loved one, as it determines inheritance rights, protects dependants, and ensures orderly distribution of assets. This guide explains the legal principles, procedures, and practical considerations involved in intestate succession in Kenya.
2. What is Intestate Succession?
Intestate succession occurs when a person dies without having made a valid will, or when their will is declared invalid by a court. In such cases, the deceased is said to have died "intestate," and their property is distributed according to statutory provisions rather than personal wishes.
The Law of Succession Act (Cap 160) provides comprehensive rules that determine which family members qualify as beneficiaries and how the estate should be shared among them. These rules aim to protect the interests of close family members, particularly spouses, children, and dependants who relied on the deceased for support.
3. Legal Framework Governing Intestate Succession in Kenya
The primary legislation governing intestate succession in Kenya is the Law of Succession Act, Chapter 160 of the Laws of Kenya. This Act was enacted in 1972 and harmonized succession laws across different communities in Kenya.
Key provisions include:
Section 29: Defines who qualifies as dependants entitled to inherit
Section 35: Outlines the order of priority among beneficiaries
Section 36: Addresses distribution when there is a spouse but no children
Section 38: Covers distribution when the deceased left children but no spouse
Section 39: Governs distribution when there are no immediate family members
The Act applies to all Kenyans regardless of ethnic background, religion, or customary practices, with limited exceptions for Muslims who may opt for Islamic succession principles.
4. Who Qualifies as Dependants Under Kenyan Law?
Under Section 29 of the Law of Succession Act, dependants are persons who were wholly or partially dependent on the deceased for maintenance at the time of death. This category includes:
Surviving spouse or spouses: Whether married under statutory law, customary law, or Islamic law
Children: Including biological children, adopted children, and children born out of wedlock
Parents: If they were dependent on the deceased for support
Other relatives: Stepchildren, grandchildren, or siblings who can prove financial dependency
Any other person: Who can demonstrate they were maintained by the deceased immediately before death
The burden of proving dependency falls on the person claiming to be a dependant, particularly for categories beyond spouses and children.
5. How Property is Distributed Under Intestate Succession
The distribution of property in intestate succession follows a hierarchical structure based on the relationship between the deceased and the beneficiaries. The Law of Succession Act provides specific formulae depending on which family members survive the deceased.
General principles governing distribution:
The surviving spouse or spouses have priority rights
All children share equally regardless of gender
Adopted children have the same rights as biological children
Children born outside marriage have equal inheritance rights
Property may include land, buildings, bank accounts, investments, vehicles, and personal effects
Both movable and immovable property are distributed according to statutory rules
The specific distribution depends on the family composition at the time of death, as detailed in the following sections.
6. Distribution When the Deceased Left a Surviving Spouse and Children
When the deceased dies leaving a spouse and children, the estate is distributed according to Section 35 of the Law of Succession Act.
Distribution formula:
Personal and household effects: Go entirely to the surviving spouse
The remaining estate: Divided as follows:
The spouse receives the first KES 10,000 (or 20% of the residue, whichever is greater)
The spouse also receives a life interest in the whole remaining estate
Children receive the remaining estate in equal shares, subject to the spouse's life interest
In cases of polygamous marriages:
If the deceased had multiple wives, the personal and household effects are divided equally among the surviving spouses
The monetary entitlement is shared equally among all spouses
Each spouse receives a life interest in their proportionate share
Children from all marriages share equally in the remainder
A life interest means the surviving spouse can use and benefit from the property during their lifetime, but cannot sell or dispose of it without consent. Upon the spouse's death, the property passes fully to the children.
7. Distribution When the Deceased Left Children But No Spouse
Under Section 38 of the Law of Succession Act, when the deceased dies leaving children but no surviving spouse, the distribution is straightforward.
Distribution rules:
The entire estate is divided equally among all surviving children
No distinction is made between sons and daughters
Children born outside marriage have equal rights
Adopted children share equally with biological children
If a child predeceased the deceased but left their own children (grandchildren), those grandchildren take their parent's share by representation
Example: If the deceased had three children and one predeceased them leaving two grandchildren, the estate is divided into three portions. Two children receive one-third each, and the two grandchildren share the remaining third equally.
8. Distribution When the Deceased Left a Spouse But No Children
Section 36 of the Law of Succession Act governs succession when the deceased leaves a surviving spouse but no children.
Distribution formula:
Personal and household effects: Go entirely to the surviving spouse
The remaining estate: Divided as follows:
The spouse receives the first KES 10,000 (or 20% of the residue, whichever is greater)
The spouse receives one-half of the remaining estate absolutely
A life interest in the whole of the remainder of the net intestate estate (the spouse can use, occupy, and benefit from this portion for their lifetime, but does not own it outright and generally cannot sell or dispose of it permanently without court approval or specific powers).
In polygamous marriages:
Multiple spouses share the benefits equally
Each spouse receives their proportionate share of personal effects and the monetary entitlement
The absolute half share is divided equally among all surviving spouses
9. Distribution When the Deceased Left No Spouse or Children
When the deceased dies without a surviving spouse or children, Section 39 of the Law of Succession Act provides for distribution to extended family members.
Order of priority:
Parents: If both parents survive, they share the estate equally. If only one parent survives, that parent takes the entire estate
Siblings: If there are no surviving parents, the estate goes to the deceased's brothers and sisters in equal shares
Nieces and nephews: If a sibling predeceased the deceased, their children take by representation
Half-siblings: If there are no full siblings, half-siblings (sharing one parent with the deceased) inherit equally
Grandparents: If there are no siblings or their descendants, the estate goes to grandparents
Uncles and aunts: If there are no grandparents, the deceased's uncles and aunts inherit
The State: If no qualifying relatives can be found, the estate escheats to the government
The court conducts thorough investigations to locate eligible beneficiaries before allowing the estate to pass to the State.
10. Rights of Adopted and Illegitimate Children in Intestate Succession
The Law of Succession Act provides equal inheritance rights to all children, regardless of the circumstances of their birth or adoption.
Adopted children:
Have the same rights as biological children
Must be legally adopted through a court order
Lose inheritance rights from their biological parents upon adoption
Gain full inheritance rights from their adoptive parents
Are treated identically to biological children in distribution calculations
Children born outside marriage:
Have equal rights to children born within marriage
Must prove paternity, usually through:
Birth certificate naming the deceased as father
DNA evidence
Court declarations of paternity
Acknowledgment by the deceased during their lifetime
Share equally with other children in the estate
Cannot be discriminated against based on their parents' marital status
This principle reflects Kenya's constitutional commitment to equality and non-discrimination, as enshrined in Article 27 of the Constitution of Kenya 2010.
11. The Role of the Court in Intestate Succession
The High Court of Kenya has jurisdiction over succession matters and plays a central role in administering intestate estates.
Key functions of the court:
Issuing letters of administration intestate to qualified applicants
Determining who qualifies as dependants
Resolving disputes among potential beneficiaries
Supervising the administration of the estate
Approving the final distribution of assets
Protecting the interests of minors and vulnerable beneficiaries
Hearing objections to proposed distributions
The court ensures that estates are administered according to law and that all legitimate beneficiaries receive their lawful entitlements. Administrators must file periodic accounts with the court and obtain approval before making final distributions.
12. Steps to Apply for Letters of Administration Intestate
When someone dies intestate, a qualified person must apply to the High Court for letters of administration intestate, which authorize them to collect and distribute the deceased's assets.
Step-by-step application process:
Step 1: Determine eligibility
Priority for appointment as administrator follows this order:
Surviving spouse
Children of the deceased
Parents of the deceased
Siblings of the deceased
Other next of kin
Step 2: Obtain the death certificate
Collect the original death certificate from the Civil Registration Department.
Step 3: Conduct a search at the Principal Registry
Search the Principal Registry in Nairobi to confirm no will exists.
Step 4: Prepare required documents
Gather the following:
Original death certificate
Identity documents of the applicant and all beneficiaries
List of assets and liabilities (estate inventory)
Consent from other potential administrators (if applicable)
Affidavit in support of the application
Certified copies of marriage certificates (if applicable)
Birth certificates of children
Step 5: File the petition
Submit the petition for letters of administration intestate to the High Court in the jurisdiction where the deceased resided or where their property is located.
Step 6: Publication of Notice
Publish a notice in the Kenya Gazette. This is the official government publication where succession causes are advertised, allowing creditors and other interested parties to raise objections. Section 67(2) of the Law of Succession Act: The notice must be exhibited conspicuously in the courthouse and published in such other manner as the court directs.
Step 7: Attend court hearing
Appear before the court on the scheduled date. The court may ask questions about the estate and the proposed distribution.
Step 8: Obtain letters of administration
If satisfied, the court issues letters of administration intestate, which give legal authority to administer the estate.
13. Timeline for Obtaining Letters of Administration
The duration for obtaining letters of administration intestate varies depending on several factors.
Typical timeline:
Document preparation: 2 to 4 weeks
Filing petition: 1 day
Publication period: 30 days (mandatory waiting period after newspaper notice)
Court processing: 2 to 6 months, depending on court workload and complexity
Total time: Generally 4 to 9 months from filing to grant
Factors affecting timeline:
Completeness of documentation
Existence of disputes among beneficiaries
Complexity of the estate
Court calendar and caseload
Whether objections are filed
Accuracy of asset valuation
Cases involving contested succession, disputed paternity, or unclear beneficiaries can take significantly longer, sometimes extending to several years.
14. Common Challenges in Intestate Succession Cases
Families often encounter various challenges when dealing with intestate succession.
Frequent complications include:
Disputes among beneficiaries: Family members may disagree on distribution, particularly in polygamous marriages or when children from different relationships are involved.
Claims by unrecognized children: Children born outside marriage may emerge after death, requiring DNA testing and legal proceedings to establish paternity.
Disputed marital status: Questions may arise about whether a marriage was valid, particularly under customary law, or whether a separation amounted to divorce.
Missing beneficiaries: Heirs living abroad or out of contact may be difficult to locate, delaying distribution.
Undervalued or hidden assets: Beneficiaries may suspect the administrator is concealing assets or undervaluing property.
Debts exceeding assets: The estate may be insolvent, requiring creditor claims to be addressed before distribution.
Challenges from excluded persons: Relatives not recognized as dependants under law may contest the distribution.
Engaging experienced succession lawyers can help families navigate these challenges efficiently and minimize conflicts.
15. How to Avoid Intestate Succession: Importance of Writing a Will
The most effective way to avoid the complexities of intestate succession is to prepare a valid will during your lifetime.
Benefits of having a will:
You control exactly how your property is distributed
You can provide for specific individuals, including friends and charities
You nominate guardians for minor children
You appoint executors you trust to administer your estate
You can minimize family disputes by clearly stating your wishes
You potentially reduce estate administration time and costs
You can make provisions for business succession
You ensure fair treatment of children from different relationships
Requirements for a valid will in Kenya:
Must be in writing
Must be signed by the testator (will maker)
Must be witnessed by at least two witnesses who are not beneficiaries
Testator must be at least 18 years old
Testator must have sound mind and understanding
Must be made voluntarily without undue influence
Regular review and updates to your will ensure it reflects changes in your family circumstances, assets, and wishes.
16. Frequently Asked Questions (FAQs)
Q1: What happens if someone dies without a will in Kenya?
Their estate is distributed according to the Law of Succession Act, which provides specific rules based on which family members survive them. The court appoints an administrator to collect assets, pay debts, and distribute the remainder to legal beneficiaries in prescribed proportions.
Q2: Can a child born outside marriage inherit from their father in Kenya?
Yes. The Law of Succession Act grants equal inheritance rights to all children regardless of whether they were born within or outside marriage. The child must prove paternity through documentation, DNA evidence, or court declarations.
Q3: How long does it take to finalize an intestate succession case in Kenya?
Typically 4 to 9 months from filing the petition to obtaining letters of administration, though complex cases involving disputes or missing beneficiaries can take several years to resolve completely.
Q4: Who has priority to be appointed as administrator when someone dies without a will?
The surviving spouse has first priority, followed by children, parents, siblings, and other next of kin in that order. The court considers the interests of all beneficiaries when making the appointment.
Q5: Does a surviving spouse inherit everything when there are no children?
No. The surviving spouse receives personal effects, a preferential share, and half of the remaining estate. The other half goes to the deceased's parents or, if they are deceased, to the deceased's siblings.
Q6: Can customary law override the Law of Succession Act in intestate cases?
No. The Law of Succession Act applies uniformly to all Kenyans regardless of ethnic background. Customary law practices that contradict the Act, such as disinheriting daughters, are not legally enforceable.
Q7: What happens to jointly owned property when one owner dies intestate?
Property owned as joint tenants passes automatically to the surviving joint owner(s) by right of survivorship and does not form part of the deceased's estate. Property owned as tenants in common includes the deceased's share in their estate for distribution.
Q8: Can an administrator be removed if beneficiaries are unhappy with their conduct?
Yes. The court can remove an administrator who mismanages the estate, fails to account properly, acts dishonestly, or otherwise breaches their duties. Beneficiaries can petition the court for removal and appointment of a substitute administrator.
17. Conclusion
Intestate succession in Kenya is governed by comprehensive legal provisions designed to protect family members and ensure fair distribution of property when someone dies without a will. While the Law of Succession Act provides clear rules, the process can be complex and time-consuming, particularly when disputes arise or family structures are complicated.
Understanding your rights and obligations under intestate succession law enables families to navigate the process more effectively and ensures that estates are administered lawfully. However, the best approach is to avoid intestate succession altogether by preparing a valid will that reflects your wishes and protects your loved ones.
For personalized legal guidance on succession matters, including will drafting, estate planning, or administration of intestate estates, consulting experienced succession lawyers ensures compliance with Kenyan law and protects your family's interests.
