Intestate Succession is the process used to distribute assets and settle the liabilities of a person who dies without leaving a will. When a person dies without a valid will, they die intestate.
In Kenya, intestate succession is governed by the Law of Succession Act. This Act outlines how assets are distributed to the surviving relatives of a deceased person. Further, unlike with testate succession, no one other than the relatives of the deceased may inherit property from the deceased/s estate.
In this article, we go over the basic features of intestate succession, We aim to provide general knowledge on the process one should expect to follow if they are handling the estate of a deceased loved one, who died intestate.
What is Intestate Succession?
Intestate succession occurs when someone dies without a will or when a deceased person’s will is declared invalid by a court. In such cases, the deceased’s estate is distributed according to the set rules of the Law of Succession Act.
Intestate succession differs from testate succession where the deceased’s estate is distributed per the testator’s wishes.
Who Inherits Under Intestate Succession?
The Law of Succession Act specifies the beneficiaries who can inherit the deceased’s estate. It is crucial to clarify that the groups outlined here are in order of precedence. A group, or members of a group, can only succeed in claiming a part or the whole of the deceased’s estate when the group above them does not exist. The Act uses the phrase “and if none… ” before listing the next line of beneficiaries.
The beneficiaries include:
- Spouse and Children
If the deceased leaves behind a spouse and children, the estate is divided among them. The spouse receives a specified share of the estate, while the remaining assets are divided among the children. - Parents
If the deceased has no surviving children or spouses, the estate passes to the deceased’s parents. Each parent receives an equal share. - Siblings
If the deceased’s parents are also deceased, the deceased’s siblings become the next line of heirs. The estate is equally divided among them. - Extended Family
Where the deceased has no direct descendants, the estate may be inherited by extended family members such as grandparents, aunts, uncles, or cousins, following a defined hierarchy.
This distribution hierarchy aims to preserve the family unit and maintain social order. However, it may not reflect the deceased’s wishes, leading to potential conflicts.
The Process of Intestate Succession in Kenya
Navigating the intestate succession process requires understanding specific legal steps:
- Application for Letters of Administration
A relative or interested party must apply for a Grant of Letters of Administration from the High Court. This document authorizes the administrator to manage the deceased’s estate. - Inventory of Assets
The administrator must compile a comprehensive inventory of the deceased’s assets. This includes property, bank accounts, investments, and personal belongings. - Valuation of Assets
After listing the assets, the assets must be valued to determine the estate’s total worth. This valuation helps in the fair distribution of the estate among the heirs. - Distribution of Assets
Once the inventory and valuation are complete, the administrator distributes the assets according to the intestate succession rules. A well-drafted distribution plan helps minimize conflicts. - Obtain Confirmation of Grant
The final step involves obtaining confirmation of the grant of letters of administration from the court. This document legitimizes the distribution of the estate.
Common Challenges in Intestate Succession
Intestate succession can lead to various challenges:
- Family Disputes
Disagreements among family members often arise, particularly regarding asset distribution. These disputes can prolong the succession process. - Absence of a Clear Will
Family members may have different interpretations of the deceased’s wishes. This lack of clarity can complicate the distribution of assets. - Legal Complexities
Navigating the legal requirements for intestate succession is far more complex as compared to those of testate succession.
Illustrative Case Law
Understanding case law is crucial for interpreting intestate succession. In the case of In Re Estate of James Gikonyo Ndung’u (Deceased) [2017] eKLR, the court ruled on how to distribute the deceased’s estate when there was a conflict among heirs. The court emphasized the need to adhere to the Law of Succession Act, ensuring fair distribution according to the established hierarchy of heirs.
This case highlights the importance of legal representation during intestate succession. A lawyer can help navigate disputes and protect the rights of all parties involved.
Conclusion
Understanding intestate succession in Kenya is vital for anyone involved in estate matters. The process can be daunting, especially for families navigating the loss of a loved one. With the Law of Succession Act guiding the way, you can ensure that your loved one’s estate is handled fairly and finally by following the law.
Are you facing challenges with intestate succession? Do you need help navigating the legal complexities? Contact us today for expert legal assistance in managing intestate estates. Let us help you achieve peace of mind during this challenging time.