How Does Inheritance Work in Kenya if Someone Dies Without a Will?

Losing a loved one is a difficult and emotional experience, and the process of sorting out their affairs can make an already tough situation even harder. One of the most significant challenges in inheritance matters arises when someone dies without a will. In Kenya, as in many other countries, a will provides clear instructions on how an individual’s estate, including property, land, and finances, should be distributed after their death. But what happens when there is no will? This situation is known as intestate succession.

In this article, we will discuss how inheritance works when someone dies intestate in Kenya. We will also explore the role of the administrator of an estate, how to file for probate, the legal rights of spouses and children, how to challenge the distribution of an estate, and what happens if there is no will at all.

1. What Happens When Someone Dies Without a Will in Kenya?

When someone dies without leaving a will in Kenya, the process of inheritance is governed by the Law of Succession Act. The Law of Succession Act outlines how the estate of the deceased will be divided among the heirs, based on statutory law. The law is designed to ensure that the deceased’s property is distributed fairly among their family members, including spouses, children, and other dependents.

Intestate Succession Process:

• Appointment of an Administrator: If a person dies intestate, the family or relatives will need to apply to the court to be appointed as the administrator of the estate. The administrator is responsible for managing the estate, including paying debts, valuing the estate, and ensuring that the property is distributed according to the law.
• Distribution of the Estate: The property of the deceased will be divided according to the provisions in the Law of Succession Act. Typically, the estate is shared between the surviving spouse and children. If there is no surviving spouse or children, the estate may be divided among other relatives, such as parents or siblings.

The Law of Succession Act divides the estate based on priority:

• If there is a spouse and children: The surviving spouse gets a certain share, and the children share the remaining portion equally. The proportion depends on whether the estate includes immovable property (land or houses) or movable property (money, vehicles, etc.).
• If there is no spouse or children: The estate will go to the deceased’s parents, siblings, or other extended family members, in a hierarchy set by the Act.

This statutory process is designed to ensure that those who were closest to the deceased are taken care of and that their wishes are honored as closely as possible.

2. What is the Role of the Administrator of an Estate in Kenya?

When someone dies intestate (without a will), the court appoints an administrator to manage and distribute the estate according to the Law of Succession Act. The administrator is tasked with carrying out several key responsibilities, including:

a. Applying for Probate or Letters of Administration:

• The first step the administrator must take is to apply for letters of administration. These are legal documents that grant the administrator the authority to manage the estate. If the deceased had a will, the administrator would be called an executor and would apply for probate instead of letters of administration.

b. Identifying and Locating Assets:

• The administrator must identify all the assets owned by the deceased, including land, property, bank accounts, and other valuable items. They are responsible for gathering these assets and ensuring they are protected until the distribution process is complete.

c. Settling Debts and Liabilities:

• Before distributing the estate to the beneficiaries, the administrator is responsible for paying any outstanding debts or liabilities left behind by the deceased. This might include funeral expenses, outstanding bills, loans, or taxes owed to the government.

d. Distributing the Estate:

• Once debts are settled, the administrator will divide the remaining estate according to the rules of intestate succession, as outlined in the Law of Succession Act. This process includes ensuring the rightful heirs receive their share of the estate.

e. Dealing with Disputes:

• If any disputes arise between the heirs regarding the distribution of the estate, the administrator must facilitate the resolution of these disputes, often by seeking legal intervention. The administrator has a fiduciary duty to act in the best interests of all the beneficiaries and ensure that the estate is distributed fairly.

The administrator plays a crucial role in ensuring that the estate is properly managed, debts are paid, and the wishes of the deceased (as far as the law allows) are respected.

3. How Do I File for Probate in Kenya?

If the deceased left a will, the next step in managing their estate is to apply for probate. Probate is the legal process through which the court recognizes the will as valid and appoints the executor to distribute the estate according to the deceased’s wishes.

Steps to File for Probate in Kenya:

1. Obtain the Death Certificate: To begin the probate process, you must obtain an official death certificate for the deceased person. This certificate is required by the court when applying for probate.
2. Prepare the Will: The original will of the deceased should be submitted to the court, along with an affidavit confirming its validity. The will must be signed by the deceased and witnessed in accordance with the law.
3. File the Application: The executor named in the will must file an application for probate of will at the High Court in the region where the deceased lived at the time of death. The application will include the death certificate, the will, and other relevant documents.
4. Grant of Probate: Once the court has reviewed the application and is satisfied with the validity of the will, it will issue a grant of probate. This document grants the executor the legal authority to manage the estate and distribute it according to the will.
5. Administer the Estate: The executor will then begin the process of administering the estate, which involves collecting assets, paying debts, and distributing the property according to the terms of the will.

What Happens if the Will is Contested?

In some cases, the validity of the will may be challenged by family members or other interested parties. If this happens, the probate process can be delayed while the court hears the challenge. Disputes can arise over allegations of fraud, improper execution, or undue influence in making the will. If a will is successfully contested, the court may determine that the estate should be administered according to intestate succession laws.

4. What Are the Legal Rights of a Spouse and Children When Someone Dies in Kenya?

In Kenya, both spouses and children have recognized legal rights when it comes to inheritance.

a. Spouse’s Rights:

• Surviving Spouse’s Share: When a person dies intestate, the surviving spouse is entitled to a portion of the estate. The share depends on whether the estate consists of immovable or movable property. The spouse typically receives a life interest in the immovable property, and they may also be entitled to a share of the movable property.
• Equal Treatment of Co-Wives: In cases where the deceased had more than one wife, the wives are treated equally under the law, and each co-wife will receive a share of the estate.

b. Children’s Rights:

• Equal Share for Children: Children have the right to inherit from their deceased parent, and their share is equal, regardless of gender. If the estate consists of movable property, the children will divide it equally. If it includes immovable property, such as land or houses, the law ensures that they are provided for in a fair manner.

5. How Can I Challenge the Distribution of an Estate in Kenya?

If you believe that the distribution of an estate is unfair or that your rightful share has been overlooked, you have the option to challenge the distribution.

Reasons for Challenging an Estate:

• Undue Influence or Fraud: If you suspect that the deceased was pressured or influenced to change their will, or if the will is a forgery, you can challenge it.
• Failure to Provide for Dependents: If the deceased left dependents (such as children or a spouse) out of the will or did not provide adequately for them, they can challenge the distribution.
• Improper Execution of the Will: If the will was not properly executed (i.e., not signed or witnessed as required by law), it may be considered invalid.

Process of Challenging an Estate:

1. File a Claim: You must file your objection with the court that is administering the estate.
2. Court Hearing: The court will schedule a hearing to determine the validity of your objection. You may need to present evidence to support your claim.
3. Judgment: If the court finds merit in your claim, it may order a redistribution of the estate.

6. Conclusion

Dealing with inheritance issues in Kenya when someone dies intestate can be complicated and emotionally taxing, but understanding the process and your legal rights can make all the difference. Whether you are an administrator, a surviving spouse, or a child of the deceased, knowing how the law works will help you navigate the situation.

If you find yourself challenging the distribution of an estate or applying for probate, remember that you are not alone. Legal experts in Kenya can guide you through the process, ensuring that your rights and the wishes of your loved one are respected.