TESTATE AND INTESTATE SUCCESSION IN KENYA

Succession is the legal process through which a deceased person's estate is administered and distributed to their beneficiaries. In Kenya, succession is primarily governed by the Law of Succession Act (Cap. 160) and the Probate and Administration Rules.

Whether an estate is distributed according to the deceased's wishes or under the law depends on one key question: Did the deceased leave a valid Will? If the answer is yes, the estate is administered through testate succession. If not, it proceeds through intestate succession.

Testate Succession (Where the Deceased Left a Will)

Testate succession arises where a person dies leaving a valid oral or written Will setting out how their estate should be distributed after death.

The Will usually appoints one or more executors, who are responsible for administering the estate in accordance with the deceased's wishes.

The executors must apply to the High Court for a Grant of Probate, which legally authorises them to collect the deceased's assets, settle any outstanding debts, and distribute the estate to the beneficiaries named in the Will.

Although a person has the freedom to decide how their property should be distributed, that freedom is not absolute. Under Section 26 of the Law of Succession Act, the court may intervene where a Will fails to make reasonable provision for a dependant, such as a surviving spouse or child, and may order appropriate provision from the estate.

Intestate Succession (Where There Is No Will)

Intestate succession occurs where a person dies without leaving a valid Will or where the Will is declared invalid by the court.

In such cases, the estate is distributed according to Part V of the Law of Succession Act, regardless of what the deceased may have informally expressed during their lifetime.

Before the estate can be administered, eligible family members must obtain a Grant of Letters of Administration from the court. The law gives priority to the surviving spouse, followed by children and other close relatives.

Unlike testate succession, the deceased has no control over how the estate is distributed, as the law prescribes the beneficiaries and their respective shares.

Distribution of an Intestate Estate

The Law of Succession Act provides different rules depending on the surviving family members.

Where the deceased is survived by a spouse and children, the surviving spouse inherits the deceased's personal and household effects absolutely together with a life interest in the remainder of the estate. Upon the termination of that life interest, the remaining estate devolves equally to the children.

Where the deceased leaves children but no surviving spouse, the estate is distributed equally among all the surviving children without discrimination.

Where there is neither a surviving spouse nor children, the estate passes to other relatives in the order prescribed by the Act, beginning with the deceased's parents, followed by siblings and more distant relatives. Where no eligible relatives can be identified, the estate ultimately passes to the Government as bona vacantia.

Key Differences Between Testate and Intestate Succession

The main distinctions between the two forms of succession include:

1. Testate succession is governed by a valid Will, while intestate succession is governed by the Law of Succession Act.
2. Testate estates are administered through a Grant of Probate, whereas intestate estates require a Grant of Letters of Administration.
3. Under testate succession, the deceased determines how the estate is distributed, subject to the rights of dependants. Under intestate succession, the law determines the beneficiaries and their respective shares.
4. A properly drafted Will generally reduces uncertainty and family disputes, while intestate succession often results in lengthy succession proceedings and disagreements among beneficiaries.

Conclusion

Preparing a valid Will is one of the most effective ways of ensuring that your wishes are respected after your death and that your loved ones avoid unnecessary disputes and delays during estate administration.

Where a person dies without a Will, the Law of Succession Act provides a comprehensive legal framework for distributing the estate fairly among eligible beneficiaries. Whether dealing with testate or intestate succession, obtaining legal advice at an early stage can help families navigate the succession process efficiently and ensure compliance with Kenyan law.

Disclaimer

The information provided in this article is for general information purposes only and does not constitute to legal advice. Prior results do not guarantee a similar outcome. Reading or relying on the contents of this article does not create an advocate-client relationship with our firm. For advice regarding your specific situation, please contact us to obtain legal advice with respect to any particular legal matter.

By Ivy Ndirangu