Succession Law in Kenya — Estate Planning & Probate Services

In the crucial realm of succession law in Kenya, OLM Law provides empathetic yet decisive legal assistance, guiding individuals and families through estate planning and probate processes designed to safeguard assets and legacies for future generations.

Related Practice Areas: Property Law Kenya | Litigation & ADR

Succession Law and Estate Administration in Kenya

Succession Law in Kenya — Legal Framework

The Law of Succession Act (Cap. 160) is the principal statute governing the distribution of estates in Kenya. It applies to all persons domiciled in Kenya at the time of death, subject to limited exceptions for certain communities. The Act provides for both testate succession (where a valid Will exists) and intestate succession (where no Will exists or the Will is partially invalid).

Key principles of succession law in Kenya include:

• Freedom of testation — a testator may generally bequeath their estate to any person or institution, subject to obligations towards dependants under Section 26 of the Law of Succession Act
• Intestate succession — where there is no valid Will, the estate is distributed among surviving spouses, children, and other dependants in the priority set out in Part V of the Act
• Grant of Probate and Letters of Administration — before an estate can be administered, the personal representative must obtain either a Grant of Probate (where there is a Will) or Letters of Administration (where there is no Will) from the High Court or a Magistrates’ Court
• Muslim and Hindu succession — the Law of Succession Act exempts Muslims and Hindus from certain of its provisions where their personal law applies, creating complex cross-jurisdictional considerations

Will Drafting and Estate Planning in Kenya

A valid Will under the Law of Succession Act must be in writing, signed by the testator (or signed at the testator’s direction in their presence), and witnessed by two independent witnesses who are present at the same time. A beneficiary — or the spouse of a beneficiary — should not act as a witness, as this may invalidate the gift to that beneficiary.

Effective estate planning in Kenya typically involves:

• Drafting a Will — setting out the testator’s wishes for the distribution of their estate, the appointment of executors, and the guardianship of minor children
• Establishing trusts — creating testamentary or inter vivos trusts to hold assets for the benefit of minor children, dependants with special needs, or multiple generations of beneficiaries
• Business succession planning — advising business owners on the transfer of shares, partnership interests, and business assets on death or incapacity to ensure continuity
• Cross-border estate planning — advising individuals with assets in multiple jurisdictions on the interaction of Kenyan succession law with foreign inheritance laws and double tax treaties

Probate and Estate Administration in Kenya

The probate and administration process in Kenya is governed by the Law of Succession Act and the Probate and Administration Rules. Applications for Grants of Probate and Letters of Administration are filed in the High Court (Probate and Administration Division) or in a Magistrates’ Court for estates below a prescribed value.

OLM Law advises executors, administrators, and beneficiaries on:

• Filing applications for Grants of Probate and Letters of Administration in the Kenyan courts
• Administering estates, including identifying and valuing assets, paying debts and taxes, and distributing the residue to beneficiaries
• Contesting Wills — advising on grounds for challenging a Will, including lack of testamentary capacity, undue influence, and failure to comply with formal requirements
• Applying for variation or revocation of Grants where errors or new facts come to light during the administration of an estate