Succession & Probate

Succession and probate law governs the transfer of a deceased person's property to their beneficiaries — the legal process by which the assets, debts, and obligations of a deceased individual are identified, valued, managed, and distributed. In Kenya, this area is governed by the Law of Succession Act (Cap 160), the Probate and Administration Rules, and the Constitution of Kenya, 2010, which guarantees the right to property and prohibits discrimination in the distribution of estates. The process is administered by the High Court, which has exclusive jurisdiction over grants of probate and letters of administration.

This area covers both testate and intestate estates. For testate estates — where the deceased left a valid will — they apply for grants of probate, guiding the named executor through the process of proving the will, taking the oath of office, and administering the estate in accordance with the deceased's wishes. Advocates ensure that the will is valid under section 11 of the Law of Succession Act — that it was made by a person of sound mind, that it was not made under coercion, and that it complies with the formal requirements for execution and attestation.

For intestate estates — where the deceased died without a will, or where the will is invalid — they apply for letters of administration intestate. Advocates guide the proposed administrator through the process of identifying the lawful beneficiaries under the statutory framework, taking the oath, and administering the estate in accordance with the rules of intestate succession. The work also covers the complexities that arise in polygamous households, in estates with multiple categories of beneficiaries, and in estates where the deceased held property under customary law.

Estate administration is the practical work that follows the grant. Advocates assist administrators and executors with the identification and valuation of estate assets, the payment of estate debts and taxes, the preservation and management of estate property during the administration period, and the distribution of the estate to beneficiaries. Advocates handle the sale of estate property where the will directs sale or where the beneficiaries agree to sale, and they manage the transfer of specific assets to named beneficiaries.

Contested succession is a significant part of this practice area. Advocates act in cases where the validity of a will is challenged — on grounds of lack of testamentary capacity, undue influence, fraud, or improper execution. Advocates handle disputes over the identification of beneficiaries, the distribution of estates, and the conduct of administrators. Advocates act in dependency claims under the Fatal Accidents Act and the Law Reform Act, where dependants of a deceased person seek compensation for the loss of financial support.

Advocates also provide estate planning services — the proactive management of one's estate to ensure that, on death, the estate is distributed in accordance with one's wishes, with minimal tax liability and minimal risk of dispute. Advocates draft wills, they advise on the use of trusts (both inter vivos and testamentary), and they structure the ownership of assets — including jointly-held property, life insurance nominations, and pension benefits — to achieve an efficient and orderly transfer of wealth to the next generation.