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 affidavit 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 affidavit by the petitioner/administrator requesting for confirmation 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 filing this affidavit. 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.
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