Kenyan Succession: A Step-by-Step Guide

Table of Contents

1. Introduction to Succession in Kenya

   
   

2. Legal Basis: Law of Succession Act

   
   

3. Intestate Succession in Kenya

   
   

    3.1 Petition for Letters of Administration

   
   

    3.2 Publication in the Kenya Gazette

   
   

    3.3 Hearing and Grant of Letters of Administration

   
   

    3.4 Inventory and Valuation of the Estate

   
   

    3.5 Distribution of the Estate

   
   

4. Testate Succession in Kenya

   
   

    4.1 Application for Grant of Probate

   
   

    4.2 Validation of the Will

   
   

    4.3 Gazette Notice and Objections

   
   

    4.4 Hearing and Grant of Probate

   
   

    4.5 Inventory and Valuation

   
   

    4.6 Distribution of Assets According to the Will

   
   

5. Key Considerations in Succession

   
   

6. Common Disputes and Resolution Mechanisms

   
   

7. Practical Tips for Executors and Administrators

   
   

8. Conclusion

1. Introduction to Succession in Kenya

Succession is the legal transfer of a deceased person’s assets and liabilities to beneficiaries. It ensures fairness and compliance with either the deceased’s will or intestacy rules under Kenyan law.

2. Legal Basis: Law of Succession Act

The Law of Succession Act, Cap 160 governs succession in Kenya. It provides procedures for:

• Intestate succession – when no valid will exists.

  
  

• Testate succession – when there is a valid will.

  
  

The Act also prescribes the hierarchy of beneficiaries and court procedures.

3. Intestate Succession in Kenya

When a person dies without leaving a will, the process follows these stages:

3.1 Petition for Letters of Administration

The applicant (usually a close family member) must file the following documents in the High Court. The main forms under the Probate and Administration Rules, Legal Notice 104 of 1980, include:

• Petition for Letters of Administration (Form P&A 80)

  
  

• Affidavit in Support of Petition (Form P&A 5)

  
  

• Affidavit of Justification of Proposed Sureties (Form P&A 12)

  
  

• Consent to the Making of a Grant (Form P&A 38) – where multiple heirs consent to one or more administrators

  
  

• Guarantee by Personal Sureties (Form P&A 57)

  
  

• Certified copy of the Death Certificate

  
  

• Identity cards (ID copies) of administrators and sureties

  
  

• Proof of ownership of estate assets (e.g., title deeds, logbooks, bank statements)

  
  

3.2 Publication in the Kenya Gazette

The petition is advertised in the Kenya Gazette for 30 days to allow objections.

3.3 Hearing and Grant of Letters of Administration

If no objections are raised, or after resolving objections, the court issues Letters of Administration giving the administrator authority to manage the estate.

3.4 Inventory and Valuation of the Estate

The administrator must file the following form under the Probate and Administration Rules, Legal Notice 104 of 1980:

• Inventory of Assets and Liabilities (Form P&A 17)

  
  

• Valuation reports for land, vehicles, or other assets

  
  

3.5 Distribution of the Estate

The estate is distributed according to intestacy rules in the Act:

• Monogamous families – spouse inherits personal effects, 20% of residue, and life interest in the balance; children inherit the rest.

  
  

• Polygamous families – the estate is divided between the houses proportionally.

4. Testate Succession in Kenya

Where the deceased left a valid will, the executor applies for probate.

4.1 Application for Grant of Probate

The executor files the folowing forms under the Probate and Administration Rules, Legal Notice 104 of 1980:

• Petition for Probate of Written Will (Form P&A 78)

  
  

• Affidavit in Support of Petition (Form P&A 3)

  
  

• Original will and two copies

  
  

• Certified Death Certificate

  
  

• List of estate assets and liabilities

  
  

4.2 Validation of the Will

The court confirms that:

• The testator had legal capacity.

  
  

• The will was signed voluntarily.

  
  

• Two competent witnesses signed it.

  
  

4.3 Gazette Notice and Objections

The application is published in the Kenya Gazette for 30 days to allow objections.

4.4 Hearing and Grant of Probate

If no objections are raised, the court issues a Grant of Probate, giving the executor authority to act.

4.5 Inventory and Valuation

The executor files an Inventory (Form P&A 17) under the Probate and Administration Rules, Legal Notice 104 of 1980.

4.6 Distribution of Assets According to the Will

After settling debts and taxes, the executor distributes the estate in line with the will’s provisions.

5. Key Considerations in Succession

• Timely filing of required forms and documents.

  
  

• Fairness in distributing assets.

  
  

• Settling all debts and taxes before distribution.

  
  

• Seeking legal advice where disputes or complex estates are involved.

6. Common Disputes and Resolution Mechanisms

• Will validity challenges

  
  

• Beneficiary disagreements

  
  

• Exclusion of dependants

  
  

• Polygamous family claims

  
  

Disputes may be resolved through mediation, negotiation, or litigation.

7. Practical Tips for Executors and Administrators

1. Keep accurate financial and asset records.

   
   

2. File inventories and accounts on time.

   
   

3. Engage valuers and auditors for estate assets.

   
   

4. Maintain transparency with beneficiaries.

   
   

5. Consult a succession lawyer when necessary.

8. Conclusion

Kenyan Succession: A Step-by-Step Guide. Succession in Kenya is a structured process under the Law of Succession Act.

Whether intestate or testate, administrators and executors must follow legal procedures, use the prescribed court forms, and maintain transparency for a smooth and fair distribution of estates. Professional legal guidance is recommended to avoid mistakes and ensure compliance.

Frequently Asked Questions (FAQs) Kenyan Succession: A Step-by-Step Guide

1. What is the difference between intestate and testate succession in Kenya?

• Intestate succession happens when someone dies without a valid will, and their estate is distributed according to the Law of Succession Act.

  
  

• Testate succession happens when there is a valid will, and the estate is distributed according to the instructions in that will.

2. Which forms are required for intestate succession in Kenya?

The main forms under the Probate and Administration Rules, Legal Notice 104 of 1980, include:

• Form P&A 80 – Petition for Letters of Administration

• Form P&A 5 – Affidavit in Support of Petition

• Form P&A 12 – Affidavit of Justification by Sureties

• Form P&A 38 – Consent to the Making of a Grant

• Form P&A 57 – Guarantee by Personal Sureties

• Form P&A 17 – Inventory of Assets and Liabilities

3. Which forms are required for testate succession in Kenya?

The primary forms under the Probate and Administration Rules, Legal Notice 104 of 1980, include:

• Form P&A 78 – Petition for Probate of Written Will

• Form P&A 3 – Affidavit in Support of Petition for Probate

• Form P&A 17 – Inventory of Assets and Liabilities

4. How long does the succession process take in Kenya?

The duration depends on whether there are objections and the complexity of the estate. On average, a simple succession cause may take 6 to 12 months, while disputed estates can take several years.

5. Can a will be contested in Kenya?

Yes. Beneficiaries or dependants can contest a will if they believe:

• The testator lacked mental capacity,

• The will was not properly signed/witnessed,

• Fraud, coercion, or undue influence occurred, or

• Dependants were unfairly excluded.

6. What happens if beneficiaries disagree during succession?

Disputes may be resolved through:

• Mediation or family negotiation (preferred for faster settlement), or

• Court hearings, where a judge determines the rightful distribution.

7. Who can apply for Letters of Administration?

Priority is given to the surviving spouse, followed by children, parents, siblings, and other close relatives. Where there is disagreement, the court may appoint one or more administrators.

8. Are estate taxes payable in Kenya?

Currently, Kenya does not levy a specific estate tax. However, administrators must settle all outstanding debts, land rates, and statutory obligations before distribution.

9. Can adopted children inherit under Kenyan succession law?

Yes. Under the Law of Succession Act, adopted children are treated the same as biological children and have equal inheritance rights.

10. Do I need a lawyer for succession in Kenya?

While it is possible to file succession documents yourself, engaging a lawyer helps ensure compliance with court procedures, avoids delays, and is crucial in cases involving disputes or complex estates.

To learn more, see the Law of Succession Act, Cap 160.

For a broader understanding of the rights of heirs and Succession Laws in Kenya, see our article on Succession in Kenya: An Overview.

Kenyan Succession: A Step-by-Step Guide