UNDERSTANDING INTESTATE SUCCESSION IN KENYA
Introduction.
Imagine this: a loved one passes away, but there’s no will to guide the distribution of their estate. Suddenly, the once – clear future becomes a maze of legalities, with the law stepping in to decide who gets what. Welcome to the world of intestate succession in Kenya. When someone dies without a will, their assets don’t just float in limbo, they are distributed according to a set legal formula. But who decides? How does it work? And what does it mean for those left behind? Join us as we explore the twists and turns of intestate succession, where the law takes center stage in determine the fate of a loved one’s legacy.
In Kenya, the law governing succession matters is the Law of Succession Act, Cap 160. Under it, when a person dies, and has not made a will which is capable of taking effect, in respect of all his free property, such a person is said to have died intestate.
Further, this legislation only accounts for the spouse(s) and blood relatives of the deceased person, with the children of the deceased being given priority over all other blood relatives.
Additionally, both monogamous and polygamous marriages are allowed in Kenya. This is found under sections 2, 3 and 6 of the Marriage Act No. 4 of 2014. Therefore, the Law of Succession Act has also provided for both settings, if the deceased died intestate.
Intestate succession in monogamous marriages.
If the deceased died leaving one surviving spouse and child or children.
It may occur that when the deceased has departed, a surviving spouse with either a child or children may have been left. Section 35 of the Law of Succession Act, Cap 160 provides for such an instance.
Where the deceased dies and leaves one surviving spouse and a child or children, the surviving spouse shall be entitled to the personal and household effects of the deceased and a life interest in the whole residue of the net intestate estate. For instance, is a husband dies intestate and leaves behind a wife and children, the wife is granted a life interest in the whole residue of the estate. This means that she can live in the family home, use other assets, and receive any income generated by the estate during her lifetime. However, she cannot sell or give away the assets. Upon her death, the residue of the estate typically passes to the children or other heirs according to the rules of intestacy.
If the deceased leaves behind no spouse but one child or multiple children.
Where the deceased has left a child or children but no spouse, section 38, read together with Section 41 and 42 of the Law of Succession Act provides that the net estate of the intestate shall automatically devolve to the surviving child, if there be only one, or be divided equally among the surviving children.
What if the intestate has left no surviving spouse or children?
In cases where the deceased leaves no surviving spouse or children, the net intestate estate will pass to the deceased’s family members according to a specific order of priority. In accordance with Section 39, the distribution is as follows:
- First, the estate will go to the father of the deceased. If the father is deceased, it will go to the mother.
- If both parents are deceased, the estate will be distributed equally among the deceased’s brothers and sisters, including any children of deceased brothers and sisters.
- If there are no siblings or their descendants, the estate will then pass to the deceased’s half-brothers and half-sisters, and any children of deceased half-brothers and half-sisters.
- If there are no such relatives, the estate will devolve to the nearest relatives by blood.
- If none of these relatives exist, the net intestate estate will ultimately pass to the state and be paid into the Consolidated Fund.
Intestate succession in a polygamous marriage.
Section 40 of the Law of Succession Act deals with succession in polygamous marriages. It stipulates that when a person in a polygamous union passes away, their personal belongings and the remaining estate are to be divided among the different households. The distribution is done based on the number of children in each household, with each child and surviving spouse considered a unit within their respective household.
The surviving spouses, just as is in a monogamous marriage, are entitled to their household and personal effects of the deceased absolutely, as well as life interest in the entire residue of the net intestate estate which ends upon remarriage.
The procedure for succession in Intestate matters.
- Filing of documents in Court.
Here, all the relevant documentation must be filed at the applicable court so that they may be approved and assessed. These documents include; Letter from the area chief acknowledging the spouse, children and beneficiaries as one of the deceased, a death certificate of the deceased, and a Petition of Letters of Administration. Additionally, for the purpose of ensuring that the Applicant to the grant fulfils their mandate as promised in the petition, the applicant(s) will also need to produce a guarantee by personal sureties. It is also at this stage where the requisite fee is paid.
- Notice in the Kenya Gazette.
The Court publishes a notice of the Petition for Letters of Administration, inviting any interested parties to submit their objections regarding the deceased person’s estate within thirty (30) days of the publication date.
- Issuance of Letters of Administration.
If there is no objection in the 30 days, the petitioner will obtain from the court the grant of Letters of Administration which is to essentially set the petitioner as the intended administrator(s) of the estate. The Court will proceed to hear the matter, should there be no objection.
- Confirmation of Grant.
Six months after the Grant of Letters of Administration is issued, the administrator of the estate must apply for a Confirmation of Grant under section 71 of the Law of Succession Act, Cap 160. In this application, the administrator is required to specify the proposed distribution of the deceased’s properties among the beneficiaries.
It is also crucial that all beneficiaries reach an agreement on the distribution, as disputes often arise at this stage concerning the fairness and equity of the proposed distribution. The court, upon receiving the application, will consider any objections and ensure that the distribution is just and in accordance with the law before confirming the grant.
“The information provided in this article is intended for general legal advice and does not constitute legal advice for any specific transaction or case. Since each transaction presents a unique legal context, it is advisable to retain a legal adviser for specific transactions.”
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