When someone dies, their property does not pass automatically. Someone has to be given legal authority to gather it, pay the debts and distribute it, and that authority comes from a grant. Probate in Kenya, and the administration of estates, is the court process that provides it. This guide explains the grants, the process, the timelines, and what happens when an estate is contested.
This guide is for executors, administrators, beneficiaries and families dealing with the estate of someone who has died. If you are planning ahead, see our guides to writing a will and to estate planning and succession. To understand who inherits where there is no will, see our guide to intestate succession.
A grant of representation is the court’s authority for a named person to deal with a deceased person’s estate. Without it, banks will not release funds, land cannot be transferred, and shares cannot be dealt with, because no one has proven their authority to act. The Law of Succession Act (Cap 160) sets out how that authority is obtained and exercised. So the grant is the key that unlocks the estate.
Which grant you seek depends on whether there is a valid will.
Where there is a will, the executors named in it apply for a grant of probate. Probate confirms the will and the executors’ authority to carry it out. Where there is no will, or no executor able to act, the people entitled to the estate apply for letters of administration, which appoint them as administrators to distribute the estate under the rules of intestacy. The documents and the applicant differ, but the purpose is the same: to give someone the legal authority to administer the estate.
| Feature | Grant of probate | Letters of administration |
|---|---|---|
| When | There is a valid will | No will, or no able executor |
| Who applies | The executor named in the will | Those entitled under intestacy |
| Authority given | To carry out the will | To administer under the intestacy rules |
The application is made to the court, to the High Court or a magistrate’s court depending on the value and nature of the estate. The petition, with the will where there is one and supporting documents, is filed and the application is advertised, giving anyone with an objection a period to come forward. If no valid objection is made within the set time, the grant is issued. The grant is then normally confirmed after six months, a pause that allows creditors and any claimants to surface, and only on confirmation is the estate finally distributed. So a straightforward estate still takes months, and a contested one takes longer.
Not every estate passes smoothly. Someone may challenge the validity of the will, dispute who is entitled, or object to the person seeking the grant. Separately, a dependant who has been left without reasonable provision can apply to the court, which may order provision out of the estate. These disputes are dealt with in the succession proceedings, and they are far more common where there was no clear will, which is one of the strongest arguments for making one.
For the grounds and the procedure in each case, see our detailed guides to contesting a will in Kenya and to removing an executor where a personal representative will not act or account.
What is probate? The grant that confirms a will and gives the executor authority to administer the estate.
What are letters of administration? The grant appointing administrators to distribute an estate where there is no will or no able executor.
How long does it take? Months rather than weeks. The grant is advertised, issued if unopposed, and usually confirmed after six months before distribution.
Why the six-month wait? Confirmation after six months allows creditors and claimants to come forward before the estate is shared out.
Can a grant be challenged? Yes. The will, the entitlement or the applicant can be disputed, and dependants can claim provision.
The recurring problems are delay in applying for a grant, which freezes the family’s access to the estate; distributing assets before the grant is confirmed; and underestimating dependants’ claims. Others discover that the absence of a will turns a simple estate into a contested one, and that informal family arrangements do not bind the court.
Our private clients team handles estates from start to finish: applying for probate and letters of administration, guiding executors and administrators through their duties, dealing with creditors and dependants’ claims, and resolving contested successions. We also handle the transfer of land, shares and businesses within an estate, including disputes over the succession of land and the transmission of shares on death. To administer an estate, 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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