Defining
succession?
It is the process of transferring
properties left behind by a deceased person to the person or persons entitled,
either through a will or operation of law.
Relevant Law
The Law of Succession Act (Cap. 160)
provides the legal framework for intestate succession in Kenya. It stipulates
the rules of inheritance, the rights of beneficiaries, and the powers and
duties of the administrator. It also outlines the procedures and guidelines for
asset distribution, ensuring that the deceased's assets are passed on to the
rightful beneficiaries in a legally sound and equitable manner.
The
process involved in Testate Succession
A will can
be either oral or written, and a valid will must be executed, witnessed and
signed by the deceased. Any goodwill names the executor of the estate who might
be a spouse, child or relative, close friends, a bank or a public trustee
nominated by the deceased. The only restriction is that an executor cannot be a
beneficiary as that invalidates the will.
Where the
court has determined that the will is valid, the executor named in the will may
proceed to make a petition for a grant of probate to execute the will and
administer the estate according to the wishes of the deceased. A grant of
probate makes the will an enforceable court order giving the executor the
authority to distribute the property and the estate according to wishes of the
deceased in the will.[1] When making an application for a grant of probate the
following documents are required; the will, the petition accompanied with
supporting affidavits, original death certificate of the deceased and a consent
form. Just as with the intestate succession, the application is gazetted for 30
days and is open for objections from the public. If there are no objections,
the petitioner makes an application for confirmation of grant which should be
done after 6 months.
Defining intestacy? Inheriting
Land Without A Will: – Intestate Succession
Intestacy occurs under three circumstances:
1.A person dies WITHOUT a will,
2. The will left by the deceased is
declared invalid by a court of law,
3. A person prepares then revokes his will
and dies before executing a new one.
In cases where the deceased dies intestate,
the Applicant petitions the court for a grant of Letters of Administration
intestate.
But where there is partial intestacy, the
Letters of Administration in respect of the intestate estate shall be granted
to any executor(s) who proves a Will.
What is the order of preference for
applicant (s) to whom a grant of letters of administration can be issued to?
·
Surviving spouse or spouses,
with or without association of other beneficiaries,
·
Other beneficiaries entitled on
intestacy, with priority according to their respective beneficial interest as
provided in the law,
·
The Public Trustee,
·
Creditors
What is the essential information
required while applying for any grant of representation?
Every application for a grant of
representation shall be prepared, signed by the applicant and witnessed. The
application must include the following information:
a)
The full names of the deceased,
b)
The date and place of his/her
death,
c)
His/ Her last place of
residence,
d)
The relationship, if any, of
the applicant to the deceased,
e)
Whether or not the deceased
left a valid will,
In cases of total or partial intestacy, the
names and addresses of all surviving spouses, children, parents, siblings of
the deceased, and of the children of any child of his or hers, then deceased.
A full inventory of all the assets and
liabilities of the deceased, and other information that may be required under
the law.
The main procedure for succession in
intestate matters include:
Acquisition of the Death Certificate:
The most important step upon the death and
burial of a loved one would be to obtain the death certificate to commence the
process of administration of the estate of the deceased person. An application
is made to the registrar of births and deaths in the respective sub-county
where the deceased passed away. This is accompanied with a burial permit, the
deceased person’s identity card and a letter from the chief where necessary.
Finally, the requisite fee is paid, and the certificate collected within a week.
Letter from the Chief: Where there is no will, first, the family obtains a letter from the
local chief who clarifies the facts of the deceased properties and estate,
his/her assets and liabilities as well as known spouses and heirs. The letter
from the chief is addressed to the court and they are entrusted with this
mandate as they are expected to be closer to the family and hence in the know
of all the relationships in the family of the deceased. Importantly, assets may
be left out in the chief’s letter; instead, focusing on the familial tie known
to the chief about the deceased.
Petition for letters of Administration: A representative of the deceased family will make a formal request
to the court to be named as administrator of the estate (intestate). According
to the Law of Succession Act in Kenya, a person is entitled to apply for
letters of administration if they are related to the deceased by marriage or
blood relationship. These include spouses, children, grandchildren, great
grandchildren, parents, and any other relatives. If there are no relatives, or
the relatives cannot agree on the administrator, then a public trustee is
appointed.
This application is usually accompanied
with a petition for grant of letters of administration and an affidavit in
support of the petition. This confirms the facts of the case as well as the
contents of the chief’s letter. The person making the application is required
to appear in person and provide witnesses to the facts stated in the petition.
Guarantee by personal sureties: This is a form filled by people who know the applicant, the
deceased, the deceased’s estate, and the heirs well. The guarantee is to ensure
that the applicant fulfils their mandate as promised in the petition. The
guarantors may be required to swear an af๏ฌdavit to support the petition before
a judge.
Notice in the Kenya Gazette: The court is required to gazette the petition for grant of letters
of administration thereby inviting people with interest in the deceased
person’s estate to raise any objections within 30 days from the date of
publishing. If an objection is raised, the court will conduct a full hearing of
the matters, but should there be no objection within 30 days, the petitioner(s)
may obtain from the court the Grant of Letters of Administration, which
essentially sets out the intended administrator of the estate and beneficiaries
and their assignments within the estate.
Confirmation of Grant: After the lapse of six months from the issuance of the Grant of
Letters of Administration, the administrator is required to apply for a
confirmation of grant.[2] This is issued after the court is satisfied that it
has all the facts around the assets of the deceased as well as all the
beneficiaries of the estate. A sworn af๏ฌdavit by the petitioner/administrator
requesting for con๏ฌrmation of grant and indicating how the estate should be
distributed amongst the beneficiaries, is filed. It is important that the
spouses and heirs have an agreement on how the estate will be shared before
๏ฌling this af๏ฌdavit. It should be noted that many disputes may arise at this
level concerning fairness in sharing of the deceased’s estate. The confirmation
of the grant entitles the applicant to distribute the deceased property amongst
all beneficiaries.
Certificate of Confirmation of Grant: If both the Court and the parties agree as to how the property is
to be distributed, a certificate of confirmation of grant demonstrating the
said distribution is issued. The grant
is a court order and must be followed without making alterations.
Land Succession Process involved after Confirmation of Grant
Testate Succession
In this
instance, since the details of the subdivision are
clear, the will’s executioner will obtain Grant of Probate, allowing them to
proceed with mutation.
Once the High Court approves the petition
(where the property’s value is over Kes. 20M, otherwise the matter will be
filed at the Magistrate’s Court), the administrator will file a gazette notice
making known their intention to go through succession, and this gazettement
stays active for 30 days. This is to notify anyone with an objection to the
succession process to raise their voice: ideally, speak now or forever hold
your peace. The gazette notice contains all the information about the
particular property, from the parcel number to the name and all vital details
of a valid deed.
If objections are raised during this
period, the succession process is halted to give the dissentients time to
present their case. If not, it moves to
the Lands Registry.
Intestate Succession
If the deceased left no valid will behind,
or it is unvalidated, the local County Commissioner (formerly Chief) will write
a letter addressed to the court, identifying and verifying the deceased’s
survivors. A petitioner chosen by the beneficiaries or the authorities, if they
cannot agree, files a petition to be made the estate’s administrator. A gazette
notice of this letter of administration is made for 30 days, and if they lapse
without objection, the petitioner becomes the official administrator of the estate.
Note: You are allowed up to four admins for
fair representation.
Once the beneficiaries have the
administrator in place, they will have the next six months to agree on the
distribution mode. A surveyor will be on-site to survey the property and then
prepare a proposed mutation showing what each beneficiary gets. This process
should be crisp, as any later modification will require another court process.
After six months, the beneficiaries and administrator/s appear in court to show
they consent to the letter of mutation. While here, the admin is issued with
the Confirmation of the Grant of Letters of Administration. The deceased’s
estate can now be transferred.
Land Transfer process
The admin files the Confirmation of Grant
with Form LR39 to change the property’s title to their name in a process called
Transmission. During this process, the land is transferred as per the mutation
agreed upon earlier. The admin then files Form LR42 to transfer the
property to its new owners – the beneficiaries. At this point, the completion
documents are presented to the Commissioner of Lands, and they include:
• Form
LR42
• The
new land number as per the mutation.
• Confirmation
of Grant
• Kenya
gazette notice
When the commissioner is satisfied that all
these documents are as they should be, they’ll issue new title deeds in the
names of the beneficiaries, who are now at liberty to do with their bequest as
they wish.
Conclusion
Intestate succession can be a complex
process, especially during an already challenging time. Understanding the legal
framework provided by the Law of Succession Act is crucial for ensuring a fair
and efficient distribution of assets. By identifying the administrator,
obtaining Letters of Administration, conducting asset inventory, and adhering
to the hierarchy of distribution, families can navigate this process with
clarity and minimize potential disputes.
It is important to note that it is only
upon the issuance of the confirmation of grant that the beneficiaries may deal
with the property of the deceased (for example, subdivide any land). It is at
that point that a title may be transferred to the beneficiaries who are then
free to dispose of the land as they deem fit.
Finally, It is noteworthy that dealing with property belonging to a deceased
person without a court order is referred to as intermeddling, which is a
criminal offence punishable by imprisonment. Therefore, it is only prudent to
adhere to the law and follow due process on administration of estates.
Our Legal Team can assist
you in such a process of preparing a will or administering an estate. Give
us a call
and/or
fill the Form with your details in the Comment section.
