Succession Process: A focus on Intestate Succession

What Is Succession?

Succession is the legal process through which the property, assets, and liabilities of a deceased person are transferred to their rightful beneficiaries. Kenyan law recognizes two types of succession: testate succession and intestate succession.

Testate succession occurs where a person dies having made a valid will, which takes effect upon death.
Intestate succession arises where a person dies without a will, where the will is declared invalid by a court, or where the will does not dispose of all the deceased’s assets and liabilities.

This article focuses on intestate succession and explains how the law provides for the deceased’s beneficiaries in such circumstances.

Intestate Succession in Kenya

Inheritance under intestacy is governed by the Law of Succession Act. The law sets out the persons entitled to petition the court for Letters of Administration and to benefit from the deceased’s estate, in the following order of priority:

1. The surviving spouse and children
2. If there are no children: the deceased’s father
3. If the father is deceased: the mother
4. If both parents are deceased: the siblings
5. If siblings are deceased: the children of the siblings
6. If none: half-siblings
7. Any other blood relatives

Where the deceased leaves no known relatives, the net estate devolves to the Government of Kenya’s Consolidated Fund.

Polygamous Families

Where the deceased was polygamous, the estate is distributed among the houses according to the number of children in each house, with the surviving spouse in each house counted as an additional unit.

For example, a house with one wife and four children is considered to have five units, and distribution is done proportionately based on the number of units per house.

Commencing the Intestate Succession Process

To begin the process of administering an intestate estate, a beneficiary must petition the court for a Grant of Letters of Administration.

These letters give the administrators legal authority to manage the estate. Any person who deals with a deceased person’s property without such a grant commits the offence of intermeddling, which is punishable by law. Administrators have a legal duty to safeguard the interests of all beneficiaries.

Documents Required

To apply for a Grant of Letters of Administration, the following documents are required:

• A letter from the area Chief listing all beneficiaries, their ages, and their relationship to the deceased
• A certified copy of the deceased’s death certificate
• Copies of national IDs of the petitioners
• Copies of IDs of all beneficiaries

The law allows between two (2) and four (4) persons to apply as administrators. Once all beneficiaries consent and sign the necessary documents, the application is filed in court and filing fees assessed.

Gazettement

After filing and payment of fees, the petition is published in the Kenya Gazette for a period of thirty (30) days. This publication serves to:

• Notify the public of the application
• Allow any interested party to raise objections
• Enable omitted beneficiaries to apply for inclusion

Grant of Letters of Administration

If no objection is raised within the gazettement period, the court issues a Grant of Letters of Administration. This grant is issued for six (6) months, during which the administrators are expected to:

• Identify and secure the deceased’s assets
• Ascertain liabilities
• Agree on the mode of distribution with all beneficiaries

At this stage, administrators do not have authority to distribute the estate.

Where beneficiaries fail to agree on distribution, the matter may be referred to the Public Trustee for distribution in accordance with Section 40 of the Law of Succession Act.

Confirmation of Grant and Distribution

After the lapse of six months, the administrators must apply for confirmation of the grant. Upon confirmation, the administrators acquire legal authority to distribute the estate.

The law requires administrators to complete the administration of the estate within six (6) months after confirmation, unless the court extends the time. Administrators must also file with the court:

• A full and accurate inventory of the deceased’s assets and liabilities
• A complete account of how the estate has been administered

Conclusion

Intestate succession is a structured legal process intended to protect beneficiaries and ensure orderly transfer of property. While the procedure may appear lengthy, compliance with the law is essential to avoid disputes, criminal liability, or invalid distribution. Beneficiaries are encouraged to seek legal guidance to ensure the process is conducted lawfully and efficiently.

 

Author’s Note: This article is intended for academic discussion and does not constitute legal advice.