Choosing a Succession Lawyer in Nairobi: What the First Meeting Should Cover

Families arrive at a first succession meeting with a death certificate and a general sense of what the deceased owned. That is understandable and it is also why so many Kenyan estates take eighteen months when they could take twelve.

This article sets out what a first meeting should cover, what to bring, and the questions that determine everything that follows.

What the first meeting is actually for

Three things: establishing what the estate contains, establishing who is entitled, and deciding which application to make. Everything else follows from those.

An advocate who takes instructions and files without doing this properly produces an application that has to be amended, or one that meets an objection at gazettement. Both add months.

The six documents to bring

1. The death certificate

The foundational document. Where one has not yet issued, a burial permit supported by an affidavit explaining the delay will usually suffice to begin, but the certificate is required before a grant issues.

2. Title documents for land

Original titles where available, or at least the title numbers. Land is usually the estate's most valuable asset and the most complicated to transfer, and its treatment shapes the whole matter.

3. Recent bank statements

For each account, showing the balance at or near the date of death. Banks will not disclose to family members without a grant, which is circular — so whatever statements the family already holds are valuable.

4. Pension and insurance details

Scheme names, policy numbers and, critically, whether nominations were made. Benefits with a valid nomination pass directly to the nominee outside the estate, and this frequently changes the picture entirely.

5. The will, if there is one

The original, not a copy. A copy raises a presumption that the original was destroyed with intent to revoke, which is rebuttable but adds an evidential burden nobody needs.

6. A complete list of surviving relatives

Spouse or spouses, all children including those born outside marriage, parents if living, and any relative the deceased was supporting financially.

That last category is the one families edit. It should not be edited — see below.

The question families do not want to answer

"Is there anyone else?"

A second household, a child from an earlier relationship, a dependent sibling or parent the deceased was supporting. Families frequently omit these, either out of discretion or out of hope.

Omission does not remove the claim. It defers it to gazettement, where the omitted person objects and the matter becomes contested litigation running years rather than months.

Under the Law of Succession Act, dependants include the spouse, former spouses and children whether or not maintained, and — where maintained immediately before death — parents, grandparents, grandchildren, step-children, adopted children and siblings. Any of them may apply for reasonable provision regardless of a will.

The advocate needs the complete picture to advise properly. Our estate planning practice treats this conversation as the most important part of the first meeting, and it is worth having candidly.

Establishing what the estate contains

Beyond the documents, the exercise is investigative.

Search the Lands Registry for property in the deceased's name, including in counties the family may not think of. Obtain a CR12 for any company the deceased was involved in. Check with former employers about gratuity and terminal dues. Establish whether any property is held jointly, since jointly held property with a right of survivorship passes outside the estate.

List the liabilities too — loans, charges, unpaid taxes, funeral expenses. The estate is distributed net, and a personal representative who distributes without providing for known debts becomes personally liable to those creditors.

Which court, and why it is decided first

Jurisdiction follows the gross value of the estate. The High Court handles estates above the magistrates' limit; resident magistrates handle smaller ones, with the limit varying by the magistrate's rank. Where the deceased was Muslim, the Kadhis' Court has jurisdiction and Islamic succession rules apply.

File in the station with territorial jurisdiction over where the deceased ordinarily resided. This is why a rough valuation comes before drafting: filing in the wrong court means the petition is returned or transferred, and the preparation is wasted.

Probate or letters of administration?

Where there is a valid will naming executors who are willing to act, the application is for probate. Where there is no will, or the will names no executor, or the named executors cannot or will not act, the application is for letters of administration.

Where there is a will but no executor, the application is for letters of administration with the will annexed — the will still governs the distribution, but the appointment comes from the court.

How fees work

Court filing fees scale with the gross value of the estate, which is one reason the valuation must be honest rather than optimistic in either direction.

Advocates' fees for succession work follow scales in the Advocates Remuneration Order by estate value. Contested proceedings are charged separately, because they are a different exercise entirely.

Budget additionally for valuations of land and other significant assets, the bond premium where the court requires security, gazettement fees, and the rates clearance and stamp duty payable when land is eventually transferred to beneficiaries.

Ask for the fee basis in writing at the first meeting, and ask specifically what happens if the matter becomes contested — that is where estimates diverge most.

The timeline to expect

Document gathering and the chief's letter: four to eight weeks. Preparation and filing: two to four weeks. Gazettement and grant: four to twelve weeks. Then the mandatory six-month wait. Then confirmation and transfer: six to sixteen weeks.

Twelve to eighteen months for an uncontested estate. Three to seven years where it is contested.

An advocate who promises materially faster than this for an ordinary estate is either not explaining the six-month statutory period or is not being straight with you.

What must not happen before the grant

Nothing. No collecting rent, no selling a vehicle, no withdrawing from accounts, no distributing personal effects of value.

Dealing with estate assets without a grant is intermeddling — an offence under the Act that makes the intermeddler personally liable for the full value dealt with. Family members who act to help, in the weeks after a death, routinely commit it. The intention does not assist them.

Where assets genuinely need preserving — a business trading, a property requiring maintenance — an application can be made for a limited grant for that purpose. That is the proper route.

Where there is a business in the estate

This needs separate and immediate attention.

A trading company cannot pause for twelve to eighteen months. Bank mandates lapse where the deceased was a signatory. Shares are frozen until the grant is confirmed. Where the deceased was the sole director, the company has no functioning board.

Staff leave, contracts lapse, customers move to competitors. By the time the family has authority to act, the asset they inherit is worth materially less than the one that existed at death.

Continuity must be addressed in parallel with the succession application, not afterwards. Our corporate law team handles this alongside, and the options available depend heavily on what the company's articles say.

Beneficiaries abroad

Diaspora beneficiaries must either attend or grant a power of attorney authorising someone in Kenya to act in the proceedings.

That power must be notarised and then apostilled where the country is party to the Hague Convention, or legalised through the Kenyan mission, and then registered in Kenya. Authentication routinely takes two to four weeks and longer where consular legalisation is required.

Start this at the first meeting rather than when the court asks for it, because the petition waits.

When the estate is contested

A minority of estates become contested, and they behave differently from the outset.

Objections typically come from an undisclosed spouse or child, a dependant seeking provision, a beneficiary disputing the proposed distribution, or a person with prior entitlement who was not consulted. Once filed, the matter converts to litigation with pleadings, witness evidence and hearings.

Mediation is available and courts encourage it, particularly in family matters where a negotiated outcome preserves relationships that litigation destroys. A mediated settlement recorded as a consent order is enforceable and final.

Where the dispute concerns whether a will is valid, the grounds are limited: defective execution, lack of capacity, undue influence, or want of knowledge and approval. Dependant provision is a separate route and succeeds far more often, so parties should be advised which argument actually fits their position rather than pursuing the more dramatic one.

Costs in contested succession are frequently ordered out of the estate where the litigation was reasonable, which means the family collectively funds the dispute regardless of who wins.

What to ask the advocate

Which court will we file in and why. Whether the application is for probate or administration. Who else is entitled and whose consent we need. What the realistic timeline is, including the six-month period. What the fees are and what happens if it becomes contested. What we must not do in the meantime. And who at the firm will actually handle it.

The answers to those seven questions tell you whether the matter is in competent hands. If you are dealing with an estate now, bring the six documents and the complete family list, and we can give you a realistic view at the first meeting rather than the third.