In the world of succession, there are two main categories. The first is testate succession, where the deceased has a valid will in place. The other is intestate succession, which is also referred to as the process of getting letters of administration where someone has died without having a written will. When one has died without having a written will, this status is referred to as intestate. This guide explains the intestate succession process in Kenya, highlighting its benefits.
What is the Intestate Succession Process in Kenya?
In a case where someone dies intestate, one of their family members applies to the Court or petitions the Court to be granted letters of administration. Before these letters of administration are issued, no one can handle the deceased person’s property. The legal authority to do so emanates from the acquisition of the letters of administration.
Who Can Apply for Letters of Administration?
Any member of the family of the deceased, and particularly the nuclear family, can apply for the letters. In some cases, family members come together and settle on one of them or several of them to apply for this. There are also cases where the application can be made by non-family members. The Law provides for how and why this can be done. The law also shows the priority of the family members in applying for and consideration for the letters of administration, clearly indicating the hierarchy of the familial connections.
An application for the letters of administration can be made by one or several persons together in relation to one estate.
The Step-By-Step Intestate Succession Process in Kenya.
On making the application or petition, one has to attach the deceased’s certificate of death to the application, together with all the relevant documents, to show why the letters should be issued to the applicants. The Applicants also attach documents indicating the deceased’s assets, debts, credits, etc. They also indicate all the people entitled to benefit from the deceased’s assets as beneficiaries and or dependents and show the relationship of the intended beneficiaries to the deceased. These relationships are mainly based on kinship and not on social interactions.
The Courts then review the application together with any objections that may be filed by any party against the petition and either grant the letters of administration or refuse to.
The letters are given in two stages and are referred to as Interim and Confirmed. Once the Interim letters have been granted, the applicants become the administrators of the deceased person’s estate, thereby acquiring some limited authority as per the law to handle the deceased person’s estate. This Grant is limited in that it only allows the administrators to embark on identifying and collecting all of the deceased person’s property, including bank accounts, real estate and any other investments and list them. This Grant does not confer on the administrators the right to distribute the estate.
The next step after this is the distribution of the estate. Since in this case, the deceased died intestate, the distribution is done as per the law of succession in Kenya. The Law is very clear on how the estate is to be distributed and to whom.
The administrators alone or together with some or all the intended beneficiaries to the estate may file in court an application for the confirmation of the Grant and or the letters of administration proposing how the estate should be distributed. If there is no objection by anybody to the proposal, normally the courts will confirm the proposal, and the distribution will be done in terms of the same. This is the ideal situation where all the parties agree.
What if Conflicts Arise?
In many cases, the distribution of the estate is not smooth. Many disputes arise, and family members tend to collide on who will inherit what, and these matters usually end up running in courts for years. The court processes can be expensive and time-consuming. This is why it is always wise to have a written Will, which will dictate how you wish your estate to be distributed and shared out upon your death.
Where the beneficiaries, who in most cases are family members, are not willing to agree on the mode of distribution, the court hears the dispute, takes all the evidence presented to it by the infighting parties and makes a decision on the division and distribution of the estate. In so doing, it may either revoke the Grant or confirm it under its terms.
Once the distribution issue has been settled, the Courts do issue a confirmed Grant indicating the right beneficiaries and their shares of the estate. The administrators in the confirmed Grant then embark on the process of transferring the assets to the beneficiaries. Once the transfer process is over, the role of the administrators will end.
The Importance of Wills.
It is notable that innumerable family disputes can be done away with by simply writing a Will. Disputes emanate in the intestacy succession matters from so many quarters, including how the administrator will be appointed at the initial family level. Some of these disputes create a lot of animosity amongst the family members that run for generations. Some disputes, especially concerning land distribution, are so intense that they may end up causing criminal offences like murder and consequential endless hatred. A Will would cure most of the ills caused by intestacy.
To draft your will today with the help of legal experts, please use the form below: