The Administrator or Executor of a deceased person’s Estate may be removed and substituted if the appointed person dies, is incapacitated or refuses to perform their duties. An application to remove or substitute an administrator or executor may be made by the beneficiaries, co-administrators, co-executors, or creditors of the estate.
When a loved one passes away, families often rely on the administrator or executor of the estate to manage the deceased person’s property honestly and efficiently. But what happens when the person appointed fails in their duties, or worse, abuses their powers? Can you remove them? Is there a process for replacing them?
This article explains the legal framework in Kenya for the removal or substitution of an administrator or executor, including when it is permissible, who can apply, and what the courts consider when making this decision.
If you’re a family member or beneficiary concerned about the administration of a deceased person’s estate, this guide is for you.
Understanding the Role of Administrators vs Executors
In Kenya, the difference between the administrator and the executor of an estate lies in whether or not the deceased person had prepared a valid Will before their demise:
| Role | Appointed When | Legal Instrument | Main Law |
|---|---|---|---|
| Executor | There is a valid Will, and it names someone to administer it | Grant of Probate | Law of Succession Act (Cap. 160) |
| Administrator | There is no valid Will, or the Will does not name an executor | Grant of Letters of Administration | Law of Succession Act (Cap. 160) |
Despite this difference, the functions are similar: to collect, manage, and distribute the estate to its rightful heirs. Additionally, the processes for removal or substitution are essentially the same under Kenyan law, whether dealing with an executor or an administrator.
Grounds for the Removal or Substitution of an Administrator or Executor
The court may remove or substitute an administrator or executor under specific circumstances. This is made possible under the provisions in Section 76 of the Law of Succession Act and Rule 44 of the Probate and Administration Rules.
The Grounds for Removal of an Executor or Administrator Include:
- Failure to apply for confirmation of the grant within the required time
- Mismanagement or misuse of estate assets
- Failure to produce accounts or inventory when required
- Fraud or dishonesty in obtaining the grant
- Physical or mental incapacity
- Conflict of interest or hostility towards beneficiaries
- Death or unavailability of the current administrator/executor
Who Can Apply for Removal or Substitution?
Any interested party, including beneficiaries, creditors, or co-administrators, may apply for the removal and substitution of an administrator or executor.
The application is made by summons supported by an affidavit detailing the reasons for removal or substitution.
The Legal Process: Step-by-Step
1. Filing an Application
You must file a Summons for Revocation or Annulment of Grant under Rule 44(1) of the Probate and Administration Rules. This is done at the High Court (Family Division).
2. Supporting Documents
Include:
- An affidavit
- Evidence of the grounds for removal
- The original or a copy of the grant of letters of administration or a grant of probate
- Names and details of the person(s) proposed to be substituted
3. Court Review
The court will:
- Examine whether the administrator is guilty of mismanagement or incapacity
- Consider the best interests of the estate and beneficiaries
- Possibly require oral evidence or cross-examination in contested cases
4. Revocation or Substitution
If satisfied, the court may:
- Revoke the current grant
- Appoint a new administrator (can be one of the beneficiaries or a neutral party)
Key Legal Provisions
- Section 76, Law of Succession Act (Cap. 160) – Grounds for revocation of a grant
- Rule 44, Probate and Administration Rules – Procedure for revocation or annulment of a grant
- Rule 26 – Consent of beneficiaries, especially where there are adult dependents
- Section 66 – Priority of who should be appointed as administrator
Frequently Asked Questions (FAQs)
1. Can an executor named in a Will be removed?
Yes. Although named in the Will, an executor can be removed and substituted on the same grounds as an administrator under Section 76 of the Law of Succession Act.
2. Can the court appoint a neutral third party as administrator?
Yes. In contentious cases, especially where family members are in conflict, the court may appoint a neutral administrator or advocate.
3. Do all beneficiaries need to consent to a substitution?
While not strictly necessary, it is highly recommended to obtain consent from all adult beneficiaries to avoid future disputes or objections.
4. What happens to the estate if the administrator dies or disappears?
The court will appoint a substitute administrator. A fresh application for a new grant may be required.
5. How long does the process take?
It varies depending on whether the matter is contested. Uncontested applications may take a few months. Disputed cases can take over a year.
Need Help Removing or Replacing an Administrator?
If you’re facing challenges with the administration of a loved one’s estate—or if you’re concerned that the executor or administrator is not acting in the best interests of the beneficiaries—Wacu Mureithi & Co. Advocates can assist.
We offer expert, compassionate legal advice on succession matters in Kenya and can guide you through the court process step-by-step.
📞 Contact us today to schedule a confidential consultation.