An administrator faces many challenges during the probate and administration process. This is because this process is complex, and an administrator can easily make mistakes; hence, it is advisable for an administrator or a potential administrator to consult an experienced advocate to help them navigate the different legal steps and procedures involved. This guide covers estate administration in Kenya at length, shedding light on the obstacles faced and how you can navigate them.
Challenges Faced in Estate Administration in Kenya.
One of the primary challenges that an administrator faces is family disputes. These usually arise regarding how the property of the deceased person will be shared amongst the beneficiaries. These disputes can tear apart a family and lead to familial differences that can last for generations. The disputes usually end up in Courts, leading to expensive court processes with consequential financial and emotional stress amongst the family members.
Another challenge in estate administration in Kenya is coming up with the complete list of all the assets of the deceased person. This is more so where the deceased had many investments, sometimes in and out of the country, and did not keep a good record of the same. At other times, the investments are in different parts of the country. This proves to be a challenge for most administrators as they have to combine the deceased person’s assets readily for eventual distribution to the beneficiaries.
The administrator also has to invigilate the legal procedures that are involved in the probate and administration process. It is, of course, a real nightmare for a non-lawyer to do the court process alone. This would mean that the administrator understands the necessary court documents to be filed, the legal timelines to be observed in filing the documents, and is ready and available to attend court when necessary.
This is why it’s always wise to seek the guidance of an experienced advocate to assist in the process of estate administration in Kenya.
The Role of Courts in Estate Administration in Kenya.
The courts play an important part in the probate and administration process in Kenya. One of these roles is that they are the referees in the many disputes between the beneficiaries of an estate, and they help to determine disputes among the family members, mostly regarding how the assets of the deceased person will be shared among the beneficiaries. This is an important role, especially where the deceased person died without a Will or without a valid Will, and family disputes ensue. The courts determine whether a Will is valid or not where there are disputes over this. Where the Will is invalidated by the courts, it also takes up the process of distributing the deceased person’s assets using the rules of intestacy. As an administrator, you will be involved in the court’s process fully, and you cannot avoid being part and parcel of the disputes.
The Responsibilities of the Estate Administrator.
The administrator, to some extent, has to bring together the beneficiaries and agree on the essential steps of the succession process. The beneficiaries, before the onset of the probate and administration process, have the right to be notified (where they are not aware) of the existence of a Will, where there is one. Consequently, the administrator has to inform them of how the probate and administration process is going; they have the right to know and also to inherit the deceased’s estate.
The administrator’s work is easier if he/ she understand the basic tenets of the succession process. The law of succession in Kenya has had a significant impact on Kenyan communities and families in particular. It helps to determine how a deceased person’s estate will be distributed, to whom, and in what order. The law is very clear on this.
However, this is a sword that cuts both ways. It can be applied by the beneficiaries to share out the estate smoothly. At the same time, the traditional community laws on inheritance are in conflict with some of the legal provisions. Some of the traditional practices on inheritance discriminated against women and children, whereas the law of succession helps in doing away with this and allows women and children to inherit, thereby creating equality.
This new scenario of the existence and application of the written law is opposed by many in the community, who wish to disinherit all the entitled people who were not recognized by the traditional practices. The administrator has to deal with all these oppositions (where they exist) at some point before the succession process is finalized.
Changes Affecting Estate Administration in Kenya.
Besides the aforementioned scenario, other changes have occurred in the application of the law in succession matters. This has been done to help improve the process and to advance the rights of people or classes of persons who were previously disadvantaged.
One of these changes is a strong emphasis on the protection of the rights of ex-spouses, partners of the deceased person in informal marriages or common law marriages with the deceased, and the children born out of these informal unions. These children have rights irrespective of the absence of formal marriages, and the rights are being protected in the current succession laws, especially when it comes to inheritance. They are entitled to an inheritance.
The courts have also expanded the definition of the term “dependent,” and nowadays this can mean any family member who depended on the deceased person during his or her lifetime, and these persons have a right to be considered when the deceased person’s estate is being distributed.
Courts are also encouraging families to settle their disputes outside the courts by alternative methods like mediation and arbitration, which are also encouraged by our Constitution. To this end, families with disputes can engage mediators and arbitrators to help them settle their disputes outside the courts.
This is encouraged as it results in a “win-win “situation, whereby all the parties come up with the solution to the distribution of the estate disagreements, as opposed to a court process, in which sometimes it results in some parties winning and others losing.
In the Event of Further Disputes.
Once the issue of distribution has been settled, it’s still upon the administrator to process and be fully involved in the transmission process of the deceased’s assets from the deceased to the beneficiaries. At this point, some other disagreements may arise where some of the parties are reluctant or refuse to cater to the financial necessities to finalize the process. Sometimes, some parties might not agree on the court’s decision and may appeal against it, and the administrator may have to delay the transmission process.
Sometimes, some parties in the disputes might not like the administrator and can apply for his removal from the succession process. At other times, when there are several administrators in an estate, they might disagree, thereby causing other infights and further delays, etc.
The Need for Legal Expertise in Estate Administration in Kenya.
Taking into consideration the fact that most of the administrators are not well-versed in the legal field of succession, it is very important that an administrator works alongside an advocate to help them navigate the legal hurdles in the succession law. The law is very fluid and keeps on changing, and the administrator is unlikely to keep pace with the changes, as this area is not his specialty. It is therefore wise to seek advice when and if necessary to enable him to seamlessly sail through the succession process.
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