When a person dies without a valid will, they die intestate, and the law, not the family, decides who inherits. Intestate succession in Kenya follows a fixed statutory formula that often surprises families and can cause long disputes. This guide explains how an intestate estate is shared, and why a will is almost always the better course.
This guide is for families dealing with an estate where there was no will, and for anyone deciding whether to make one. To fix the problem for your own estate, see our guide to writing a will in Kenya. For the court process of administering an estate, see our guide to probate and administration.
Intestacy is what happens when there is no valid will covering the estate. Instead of the deceased choosing who inherits, the Law of Succession Act (Cap 160) supplies a formula, and the estate must be distributed according to it. The family cannot simply agree to something different that overrides the statutory scheme, and someone still has to obtain letters of administration to deal with the estate. So intestacy removes both the choice and much of the flexibility a will would have given.
The most common situation is a deceased survived by a spouse and children. Here the surviving spouse is entitled to the personal and household effects of the deceased absolutely, and to a life interest in the whole of the rest of the net estate. A life interest means the spouse has the benefit of the estate for life, but does not own it outright to give away. On the death of the spouse, that remaining estate passes to the children in equal shares. The Act also provided that a widow’s (but not a widower’s) life interest ended on remarriage; the High Court declared that proviso unconstitutional in Ripples International v Attorney General [2022] KEHC 13210, so it can no longer be applied. This structure protects the surviving spouse while preserving the estate for the children, but it also ties the estate up during the spouse’s life, which can cause friction.
| Situation | Broad outcome |
|---|---|
| Spouse and children | Spouse takes household effects and a life interest; children take the residue on the spouse’s death |
| Spouse, no children | Spouse takes the effects, a statutory sum, and a life interest in the residue |
| No spouse, children | The estate passes to the children in equal shares |
| No spouse or children | The estate passes to other relatives in a set order |
| Polygamous family | The estate is divided among the houses, taking account of the children in each |
Not every family fits the main rule. Where there is a spouse but no children, the spouse takes more of the estate, including a statutory capital sum, along with a life interest in the residue. Where there is no surviving spouse, the children take equally. Where there is neither spouse nor children, the estate passes to other relatives, such as parents, then siblings, in an order the Act sets out. And where the deceased had a polygamous family, the estate is divided among the houses, taking account of the number of children in each. These variations are where intestate estates most often become contested.
Intestacy is rigid, and rigidity breeds disputes. The life-interest structure can leave children waiting and can pit them against a surviving parent or step-parent. Blended and polygamous families frequently disagree on entitlements. Dependants who are not neatly captured by the formula may have to bring a claim for provision. And nothing about intestacy reflects what the deceased actually wanted, because they never said. Every one of these problems is avoidable with a valid will.
What happens if I die without a will in Kenya? Your estate is distributed under the intestacy rules of the Law of Succession Act, not according to your wishes.
What does the surviving spouse get? Where there are children, the personal and household effects and a life interest in the rest of the estate.
When do the children inherit? Where there is a spouse, generally on the spouse’s death; where there is no spouse, immediately and equally. (The old rule ending a widow’s interest on remarriage was struck down as unconstitutional in 2022.)
Can the family agree to divide it differently? Not so as to override the statutory scheme. Intestacy is fixed, and administration still runs through the court.
How do I avoid all this? Make a valid will, which lets you decide and reduces disputes.
The recurring problems are assuming the family can simply agree how to divide an intestate estate; misunderstanding the surviving spouse’s life interest as outright ownership; and underestimating how bitterly intestate estates, especially in blended or polygamous families, can be fought. Others delay taking out letters of administration, leaving the estate and the family in limbo.
Our private clients team advises families on intestate estates: establishing entitlements, obtaining letters of administration, resolving disputes in blended and polygamous families, and handling dependants’ claims. More importantly, we help you avoid intestacy altogether with a valid will and a succession plan. To deal with an intestate estate or to make a will, contact John Maina, Partner, at OLM Law Advocates LLP.
This article is a general guide only and is not legal advice. Please seek advice on your specific circumstances.
OLM Law Advocates LLP advises families and individuals on wills, probate, family trusts and succession planning.
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