Cross-Border Estates: How Kenyan Assets Pass to Heirs Living Abroad

A UK grant of probate does not transfer Kenyan land. Nor does a US letter of administration or a UAE succession certificate. Families discover this after the home probate has concluded, at which point the Kenyan process begins from the start.

This article covers how cross-border estates actually work, what resealing does, and the planning that avoids two probates running consecutively rather than in parallel.

Why does Kenyan property need a Kenyan grant?

Because succession to immovable property is governed by the law of the place where the property is situated, and administration requires authority recognised by the registry that holds the title.

The Lands Registry will not register a transfer on the strength of a foreign grant. It requires either a Kenyan grant, or a foreign grant that has been resealed by a Kenyan court — which gives it the effect of a Kenyan grant.

This applies regardless of where the deceased lived, held citizenship, or made their will. A Kenyan-born professional who spent forty years in Manchester and died there still has an estate requiring Kenyan administration in respect of the family land in Kiambu.

What is resealing and when is it available?

Resealing is a procedure by which a Kenyan court affixes its seal to a grant issued elsewhere, giving it effect as if it had been granted in Kenya. It is materially faster than a fresh petition because the substantive questions — who is entitled, what the will says — have already been determined by the issuing court.

Availability depends on the issuing jurisdiction. Resealing is generally available for grants from Commonwealth and certain other prescribed countries. Where the jurisdiction does not qualify, a fresh Kenyan petition is required, and it is not necessarily slower than assembling the documents for resealing.

The application requires a court-certified copy of the foreign grant, proof of the deceased's death, a schedule of the Kenyan assets, and evidence of the applicant's identity and standing. Documents from abroad must be notarised and apostilled or legalised.

What does domicile change?

Domicile determines which law governs succession to movable property — bank accounts, shares, personal effects. Immovable property is always governed by the law of its location.

So a person domiciled in England with a Nairobi apartment and a Kenyan bank account has a split estate: the apartment passes under Kenyan law, and the bank balance under English law as the law of domicile.

Domicile is not the same as residence or nationality. It is where a person has their permanent home and intends to remain. Someone who left Kenya thirty years ago but always intended to return may have retained a Kenyan domicile of origin, which changes the analysis. This is fact-specific and frequently contested where the estate is substantial.

Can foreigners inherit Kenyan land?

They can inherit, but what they can hold is constrained.

Under Article 65 of the Constitution, a non-citizen may hold land only on leasehold tenure not exceeding 99 years. Where a non-citizen inherits freehold land, the interest is converted to a 99-year lease by operation of law.

Agricultural land carries a further restriction under the Land Control Act. Transactions in controlled land require Land Control Board consent, and the Board's approach to transfers to non-citizens is restrictive.

Families should establish before death, not after, whether the intended beneficiaries are citizens. Where they are not, the interest they receive will differ from the interest the deceased held, and the value differs accordingly.

The dependant provision trap for diaspora families

Kenyan law permits a dependant who has not been reasonably provided for to apply to court for provision out of the estate, regardless of what the will says.

Dependants include the spouse, former spouses and children whether or not maintained, and — where they were being maintained immediately before death — parents, grandparents, grandchildren, step-children, adopted children and siblings.

This catches diaspora families in a specific way. A person who left Kenya and supported relatives at home for years has created a class of dependants under Kenyan law. A will made in London leaving everything to a spouse and children there does not extinguish those claims in respect of the Kenyan estate.

Where support was genuinely being provided, the planning should acknowledge it rather than ignore it. Our estate planning practice records the reasoning within the will, which the court is entitled to consider when weighing a provision application.

Untransferred family land: the compounding problem

The most common cross-border estate problem we encounter is not legal complexity. It is land still registered in the name of a grandparent who died decades ago.

Where a parent inherited land in practice but never obtained a grant and never registered the transfer, the land remains in the deceased ancestor's name. On the parent's death, the family now has two unadministered estates layered on each other, and the second cannot be dealt with until the first is.

Each generation makes this worse. Witnesses to the family history die. Documents are lost. The number of people entitled multiplies, and their consents are required. Land that could have been regularised in a single application twenty years ago becomes a multi-party proceeding.

Diaspora families are disproportionately affected because nobody is present to notice the problem until a sale is contemplated or a dispute arises.

The remedy is to regularise now, while the people who can evidence the history are alive and while the number of interested parties is small. It is an application, not litigation, provided the family agrees. Left another generation, it becomes litigation.

Two wills, or one?

For families with assets in more than one country, the choice matters.

A single global will is simpler to make and harder to administer. It must be proved in each jurisdiction, meaning the original travels between courts, and a will drafted for one system may execute badly in another.

Separate wills, one per jurisdiction, each dealing only with the assets in that country, allow the two probates to run in parallel rather than consecutively. This is usually the better structure, and the saving in time is substantial.

The critical requirement is that they interlock. Each will must be expressly limited to the assets of its jurisdiction and must state that it does not revoke the other. Wills drafted independently by advisers who do not know of each other routinely contain general revocation clauses, so the later will revokes the earlier and the family is left with an unintended intestacy in one country.

Tax across two systems

Kenya abolished estate duty, so there is no inheritance tax on death here. That does not make a cross-border estate tax-free.

A UK-domiciled individual is subject to UK inheritance tax on worldwide assets, including Kenyan property, at rates that can be substantial. US citizens and green card holders face US estate tax on worldwide assets regardless of where they live. Relief for foreign taxes may be available under a treaty or unilaterally, but it must be claimed correctly.

Kenyan-side costs still arise: stamp duty on transferring land to beneficiaries, and capital gains tax where estate assets are sold rather than transferred in specie. Our tax practice coordinates with the family's overseas advisers, because optimising for one jurisdiction while ignoring the other produces structures that fail both.

Administering the Kenyan estate from abroad

Even with a resealed grant, the practical administration requires someone in Kenya, and families underestimate what that involves.

The personal representative must deal with the Lands Registry, the banks, the counties for rates clearance, and potentially the Land Control Board. Each of those requires attendance in person or a properly authorised agent. A family abroad attempting this by correspondence typically adds months.

Where estate land is occupied — by relatives, tenants, or caretakers — the position needs establishing early. Occupation that continues for years while an estate is administered can found an adverse possession claim, and family members in occupation sometimes assert an interest of their own once the process begins.

Estate assets also need preserving during administration. Land rates and land rent continue to accrue. An unoccupied property deteriorates. A business stops trading. The personal representative's duty is to preserve value, and a representative abroad who does nothing for eighteen months may be in breach of that duty to the other beneficiaries.

Appointing a Kenyan advocate to act, under a registered power of attorney, is usually cheaper than the alternative and considerably faster.

Practical steps for a diaspora family

Document the Kenyan assets. Title numbers, account details, share certificates, and where the originals are held. Families spend months establishing what the deceased owned in Kenya because nobody wrote it down.

Confirm the title position. Land held in a deceased parent's name, never transferred, compounds the problem across generations. Regularise it while the people who can evidence the history are alive.

Make interlocking wills in each jurisdiction where assets are held.

Review nominations. Pension and insurance benefits with a valid nomination pass outside the estate entirely, in both jurisdictions.

Grant a power of attorney to someone in Kenya who can act during administration. It must be notarised, apostilled or legalised, and registered in Kenya — authentication routinely takes longer than families expect.

Consider holding structures. Where Kenyan property is held through a company or trust, the death of a family member does not require a Kenyan grant to deal with the property, because the registered proprietor has not changed. For families with substantial Kenyan holdings this avoids the problem entirely, though the transfer into the structure has its own cost. Our property and leasing team addresses the title work that usually needs completing first.