Intestate Succession in Kenya: When you Don’t Leave a Will

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 are said to have died intestate. 

In Kenya, intestate succession is governed by the Law of Succession Act.  The 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. 

Table of Contents

• What is Intestate Succession?
• Who Inherits the Estate of Someone Who Dies without a Will?
• The Process of Intestate Succession in Kenya
• Common Challenges in Intestate Succession
• Conclusion

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 the Estate of Someone Who Dies Without a Will?

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 priority. 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. For example, “the spouse and children, and if none, the parents…”.

The beneficiaries of an estate under intestate succession include:

1. The 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 (20%) while the remaining assets are divided among their children.
2. The Parents
   If the deceased has no surviving children or spouses, the estate passes to the deceased’s parents. Each parent receives an equal share.
3. The 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.
4. The 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, potentially leading to conflicts.

The Process of Intestate Succession in Kenya

Navigating the intestate succession process requires understanding specific legal steps:

1. Application for Letters of Administration
   A relative or interested party, for example, a creditor of the estate, must apply for a Grant of Letters of Administration from the High Court. This document, filed by the administrators of the estate, authorises them to manage and distribute the deceased’s estate.
2. Inventory of Assets
   The administrator must compile a comprehensive inventory of the deceased’s assets. This includes property, bank accounts, investments, and personal belongings.
3. Valuation of Assets
   After listing the assets, the assets must be valued to determine the estate’s total worth. This valuation assists in the fair distribution of the estate among the heirs.
4. 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 minimise conflicts.
5. Obtain Confirmation of Grant
   The final step involves obtaining confirmation of the grant of letters of administration from the court. This document legitimises 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. 

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 the distribution of a deceased loved one’s estate who left no will? Do you need help navigating the process of Intestate succession? Contact us today for expert legal assistance in managing intestate estates. Let us help you achieve peace of mind during this challenging time.