Succession in Kenya: From Death to Distributed Estate, Realistically

Families expect the grant to be the finish line. It is closer to the halfway point, and the misunderstanding is responsible for more delay and more personal liability than any other feature of Kenyan succession practice.

This article follows an estate from death through to distributed assets, with the timelines, the documents and the points at which things actually go wrong.

What governs succession in Kenya?

The Law of Succession Act (Cap 160) is the principal statute, supported by the Probate and Administration Rules which govern procedure. It applies to both testate estates, where a valid will exists, and intestate estates, where none does.

Two exclusions matter. Where the deceased was Muslim, Islamic succession law governs and the Kadhis' Courts have jurisdiction — the Act expressly steps aside. And certain categories of agricultural land in gazetted areas have historically attracted customary rules, though the scope of that exclusion has narrowed.

Jurisdiction sits with the High Court for estates above a prescribed value and with resident magistrates for smaller ones. Filing in the wrong court wastes months, so the estate should be valued before the application is drawn.

Step one: establish what the estate contains

Before any application, the personal representative needs a complete picture. This step is routinely rushed and it determines everything downstream.

Assets. Land and buildings with title numbers, bank accounts with balances at date of death, shares in companies, motor vehicles, pension and insurance entitlements, business interests, and personal effects of significant value.

Liabilities. Loans, mortgages and charges, unpaid taxes, funeral expenses, and any judgment debts. The estate is distributed net of liabilities, and a personal representative who distributes without accounting for them becomes personally exposed.

Assets that are not in the estate. This category surprises families most. Pension and insurance benefits with a valid nomination pass to the nominee directly, outside the will and outside the intestacy rules. Jointly held property with a right of survivorship passes to the survivor. An outdated nomination form can defeat a carefully drafted will, which is why nominations should be reviewed whenever the will is.

Step two: apply for the grant

Two forms of grant exist, and which applies depends on whether there is a will.

Grant of probate where there is a valid will naming executors. The executors apply, and their authority derives from the will rather than from the grant — the grant confirms it.

Letters of administration where there is no will, or where the will names no executor or the named executors cannot act. The Act sets an order of priority among those entitled to apply: surviving spouse first, then children, then parents, then siblings.

The application is supported by an affidavit, a schedule of assets and liabilities, the death certificate, consents from others equally entitled, and — for intestate estates — a chief's letter confirming the surviving family. Where beneficiaries are minors or where the applicants are not the only persons entitled, the court will require security by way of a bond.

Step three: gazettement and objections

Once the application is filed and found to be in order, it is advertised in the Kenya Gazette. The advertisement opens a window during which any person may lodge an objection.

Objections commonly come from a spouse or child not disclosed in the application, a creditor concerned about the estate being dissipated, or a person disputing the validity of the will. An objection converts the matter from an administrative process into contested litigation, with pleadings, evidence and hearings.

Families sometimes treat gazettement as a formality to be endured. It is not — it exists precisely so that competing claims surface at the start rather than after distribution. An objection raised now is far cheaper to resolve than a challenge to a completed distribution.

Step four: the grant issues, and what it permits

Where no objection is filed, or where objections are resolved, the grant issues. The personal representative may now collect the estate's assets, deal with banks and registries, pay debts and expenses, and take steps to preserve value.

What the grant does not permit is distribution of immovable property to beneficiaries. That requires confirmation.

Step five: confirmation — the stage that is missed

An application for confirmation cannot be made until at least six months have passed since the grant issued. The period exists so creditors can come forward and so any remaining disputes emerge before assets leave the estate.

The confirmation application sets out the proposed distribution — who receives what, in what shares — and the court examines whether it accords with the will or with the intestacy rules, and whether dependants have been reasonably provided for. Beneficiaries are served and may object to the proposed scheme.

Once confirmed, the grant becomes the authority for transferring assets. Only at this point can land be registered in a beneficiary's name.

This is the stage at which Kenyan estates most often stall for years. The grant issues, the family assumes the process is complete, nobody applies for confirmation, and the estate sits undistributed while the personal representative deals with beneficiaries who believe they are being obstructed. Our estate planning practice is regularly instructed on estates where the grant issued a decade ago and confirmation was never sought.

Step six: transferring the assets

Each asset class transfers differently.

Land is transferred by registering the confirmed grant together with a transfer by personal representative at the relevant Lands Registry, supported by rates and rent clearance. Agricultural land may also require Land Control Board consent.

Bank accounts are released against the confirmed grant. Banks will not act on the unconfirmed grant, which is a frequent source of frustration for families who assumed otherwise.

Company shares transmit to the personal representative and are then transferred to beneficiaries. Where the articles contain pre-emption rights, transmission may trigger them — a reason estate planning and shareholders' agreements should be drafted in the same conversation.

Motor vehicles transfer through NTSA on production of the confirmed grant.

How long does the whole process take?

Realistically, for an uncontested estate: two to four months to prepare and file, one to three months to gazettement and grant, then the mandatory six-month wait, then two to four months to confirmation and transfer. Twelve to eighteen months is a fair expectation.

Contested estates run considerably longer. Where a will is challenged or a dependant claims provision, three to seven years is common. The variable is not the court's speed so much as the number of contested issues, which is a function of how well the estate was planned.

What is the personal representative personally liable for?

More than most people accepting the role appreciate.

Distributing before creditors have had the opportunity to come forward exposes the personal representative personally to those creditors. Failing to account to beneficiaries, or profiting from the position, is a breach of duty. And intermeddling — dealing with estate assets without a grant — is an offence under the Act and renders the intermeddler liable for the full value of the assets dealt with.

Family members who collect rent, sell a vehicle, or empty a bank account in the weeks after a death, intending to help, are intermeddling. The intention does not assist them.

Can beneficiaries agree their own distribution?

Yes, within limits, and it is frequently the fastest route to a settled estate.

Where all beneficiaries are adults of full capacity and are agreed, they may propose a distribution scheme that differs from the strict statutory shares, and the court will generally confirm it on being satisfied the agreement is genuine and that no dependant has been overlooked. This is how families resolve situations where the statutory division would produce an impractical result, such as a single house divided between five children.

Two constraints. Where any beneficiary is a minor or lacks capacity, the court will scrutinise the arrangement closely and may require representation for that beneficiary. And an agreement that excludes a person entitled to apply for dependant provision does not bind them, so the agreement should include everyone with a potential claim rather than only those currently in the room.

What does the process cost?

Court filing fees scale with the gross value of the estate, so a substantial estate carries materially higher fees than a modest one. Advocates' fees for succession work are governed in part by the Advocates Remuneration Order, which prescribes scales by estate value, with additional fees for contested proceedings charged separately.

Beyond legal and court costs, budget for valuations of land and other significant assets, the bond premium where security is required, gazettement fees, and the rates and rent clearance and stamp duty payable on transferring land to beneficiaries.

These costs are payable from the estate rather than personally by the beneficiaries, which is one reason a personal representative should not distribute cash early. An estate distributed down to its land, with no liquidity left to pay transfer costs, is a common and avoidable problem.

How do you keep an estate out of court?

The estates that move smoothly are not the ones with simple families. They are the ones where four things were done in advance.

A professionally drafted will that accounts for dependant provision rather than ignoring it. Nominations on pension and insurance policies reviewed so they match the will's intent. A shareholders' agreement, where a business forms part of the estate, that coordinates with the will rather than contradicting it. And a documented schedule of assets so the personal representative is not reconstructing the estate from bank statements.

Where a business is involved, the risk is acute: probate can freeze a trading company's accounts while the family argues, and the business is often the estate's most valuable and most perishable asset. Our corporate law team addresses this alongside the succession planning, because the two questions arrive together and are usually handled separately.