In Kenya, the main laws governing succession (inheritance) matters are the Law of Succession Act and the Probate and Administration Rules.
A person may have died testate (having left a valid and enforceable will outlining the persons to whom their property shall pass and the manner in which such property will be distributed) or intestate (having left no will, or having left a will that was subsequently declared invalid). In both instances, these two laws apply.
What is the Succession (Probate) Process?
A probate is a legal process in which a will is reviewed to determine whether it is valid and authentic. Probate also refers to the general administering of a deceased person’s will or the estate of a deceased person without a will.
In Kenya most people pass on without a will on how his estate (property) should be distributed. However, with or without a will the deceased estate is still administered or distributed in accordance to the Law of succession.
If a deceased had a will, the probate process begins when the executor (a person who is nominated by the deceased in the last will) presents the will for probate in a high court of Kenya in the county where the decedent lived, or owned property.
If there is no will, someone must ask the court to appoint him or her as administrator of the deceased estate. Often, this is the spouse or an adult child of the deceased. Once appointed by the court, the executor or administrator becomes the legal representative of the estate and he is obligated to administer the deceased estate.
Generally, the process of applying for grants is as follows:
Step 1: Preparation and registration of the petition and accompanying documents
Where there is a Will, an application for Probate requires the following documents:
- Petition for Grant of Probate
- An affidavit in support of the petition sworn by the Executor outlining such details as the date of the deceased’s death, his/her dependants, his/her assets and liabilities.
The petition and affidavit are to be accompanied by:
- Original and 2 copies of the will
- Original death certificate
Where there is no Will an application for Grant of Letters of Administration requires the following documents:
- The Petition for the Grant of Letters of Administration.
- An Affidavit in support of the Petition, sworn by the proposed Administrator(s); outlining such details as the date of the deceased’s death, his dependants, his assets and his liabilities.
- Consent from persons who also have the right to apply for the letters but have declined to do so.
- An Affidavit of justification for the proposed Administrator.
- Proof that the proposed Administrator is solvent.
- Guarantee by one or more sureties that if, a person with beneﬁcial interest in the deceased’s estate suffers loss because of a breach of duty by the Administrator, they (the Administrator) would be liable to compensate them for such a loss.
The documents listed above will also be accompanied by:
- A letter from the area chief listing all the beneficiaries to the property, their ages and relationship to the deceased;
- Certified copy of the death certificate;
- Applicant’s identity card; and
- Identity cards of the beneficiaries (those entitled to the property of the deceased).
Upon drafting and gathering these documents, they are to be filed for approval and assessment of fees in the Principal Probate Registry at the High Court. Once approved, the applicant will be requested to make the necessary payments, including Gazettement fees.
Step 2: Notice of application for Grant
Upon showing proof of the required payments, the Registrar of court shall ensure that notice of the application is published in the Kenya Gazette and conspicuously in the courthouse.
The purpose of this notice is to inform the general public of the deceased’s death so that his/her creditors might know who to contact for settlement of debts. It also gives an opportunity to beneﬁciaries of the deceased to lodge objections against making of the grant to the Petitioner, if they so wish.
This notice shall be published for 30 days; after the lapse of the 30 days’ period no objection shall be allowed.
Step 3: Procedure where an objection to the application is raised
Where an objection is raised in the form of a notice within the 30 days’ period, the Registrar of court notifies the Objector to file an answer to the application together with a cross-application and a replying affidavit. Once these documents are filed, the matter is referred to the Court for hearing of the proposed Personal Representative’s petition, together with the Objector’s answer and cross application, to determine whether there is a valid claim being made.
Step 4: Issuance of Grant
After the determination of the objection proceedings (if any) or if no objections are raised within the 30 days, the Grant of Probate or Letters of Administration shall be issued. Thereafter, parties wait for a period of 6 months then apply to the Court to have the grant confirmed.
Step 5: confirmation of grant/probate
Upon lapse of 6 months the court makes a confirmation of the grant/probate by giving a go ahead to distribute the deceased property to the beneficiaries in accordance to the Will or mode of distribution where there is no Will.
Confirmation may also occur before the lapse of 6 months where the Personal Representative can prove that the deceased’s dependants are above 18 years and have consented to the application for early confirmation, and that it would be expedient in all circumstances of the case to confirm early.
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