Legal Review: Transfer or Acquisition of Title to Land through Succession Process

 

 1.0 Introduction

People make investments, acquire property, and most times fail to address the question on what happens when they cease to exist. Very few utilize the power to dictate how their property is to be done.

The focus of this article will basically be to analyze/guide in the context as to how property is transferred to those who survive the deceased owner, and thus Intestate Succession will be the focus herein.

2.0 Analysis/Discussion

Succession is the process is action of inheriting title/property undertaken by the beneficiaries of a deceased person. It is a process that is compulsorily undertaken to ensure that the property of any nature is passed on to the beneficiaries.

Majority of the people who survive the deceased know little guidance as how to undertake succession process when their loved one dies and are left fighting for the deceased property in most circumstances.

Administration of the estate of the deceased is very crucial and has to be done within a reasonable timeline to avoid disputes that arise out of inordinate delays.

The Law of succession is governed by the Laws of Succession Act (CAP 160) which outlines the manner in which one can distribute the wealth of deceased person.

When a person dies, two situations arise, he either dies with a will (Testate) or without a will (Intestate).

3.0 Starting the process of Administration of the estate of the Deceased.

To begin with, one goes to the area chief of the place the Deceased resided for issuance of a letter of recognition which identifies the person and notes that at the point of his death he resided in his location and left the listed persons as his beneficiaries.

The process is then followed by filing of a Petition in Court. The Petition is filed by either of the surviving dependants of the deceased either the deceased’s spouse or the children so as to obtain Letters of Administration over the deceased’s property. If the deceased dependants cannot agree on a suitable representative to petition, the authority decides on who to file the petition among the dependants. There is an allowance of up to 4(Four) administrators allowed to file the petition for purposes of fair representation.

The Petition filed in court is to be accompanied by other documentation which include:

a.     A letter from the local area administration (County Commissioner/Chief or equal rank) addressed to the Court and providing the particulars of the dependants to the deceased person.

b.    An Affidavit that provides sufficient details identifying the assets and liabilities of the deceased together with particulars of the dependants, their relation of the deceased, and their ages.

c.     An Affidavit of justification of proposed administrator (s) stating the network of the proposed administrators.

d.    An Affidavit of justification of proposed sureties sworn by two people acting as sureties of the proposed administrator(s) with sureties executing a guarantee that they will make good any loss which the deceased’s estate may suffer if the administrator breaches the duties assigned in the course of administration of the estate to an ascertained limit.

e.     A Consent by all persons legally entitles to obtain grant of letters of administration approving agreeability to the petition.

Once filed, the petition is filed in the Kenya Gazette as notice to the public notifying the application for Grant of letters of administration. After 30 days if no objection is raised the grant of letters of administration is granted to the Petitioner.

The Grant of letters provides the administrator power to manage the assets of the deceased but not powers to distribute the deceased’s estate.

After Six months from the date of issue of letters of administration, the same is confirmed and a certificate of Confirmation of Grant is issued which gives the administrator powers to distribute the estate of the deceased.  Within the 6(six) months, the beneficiaries agree on the distribution mode.

Notably, intermeddling is an offense in the succession process.

Additionally, a child as a beneficiary may be of two ways, biological of adopted child of the deceased.

4.0 Land Transfer Process

The administrator at this point files the Confirmation of Grant alongside the Form LR39 to change the title over the property through Transmission to the named of the Administrator. Thereafter, the administrator files form LR42 to have the property transferred to the rightful assigned owner of the property as per the Grant and in which the completion documents are handed to the Commissioner of Lands for review, approval and issuance of new title in the names of the beneficiaries. The documents include; Form LR42, New Land number arising from the mutation, Confirmation of Grant, and the Kenya Gazette Notice.

5.0 Conclusion

As noted hereinabove, the process of transferring land is not a complicated process as such. If one identifies an Advocate, the process is initiated as appropriate, and he/she will walk you through the process till completion.