Wills in Kenya

Wills in Kenya

Estate planning starts with the fundamental step of writing a will in Kenya. A will is a legally binding document that allows the testator (the person creating the will) to make decisions about how their estate will be managed and distributed after death.

What Is a Will in Kenya?

A will in Kenya is a written document that specifies the distribution of an individual’s property and, if applicable, the custody of minor children. It outlines the testator’s wishes and appoints an executor to manage the estate and ensure those wishes are fulfilled. Additionally, a will may stipulate the creation of a trust, either during the testator’s lifetime (living trust) or after death (testamentary trust).

Benefits of a Will in Kenya

Having a valid will in Kenya ensures clarity for family members, helping to prevent disputes during the division of assets. A will allows the testator to dictate the distribution of both real and movable property, including land, money, shares, intellectual property, and personal items.

The Probate Process

The validity of a will in Kenya is confirmed through probate, a legal process that authenticates the will. The executor, named in the will, submits it to probate court within 30 days after the testator’s death. Once validated, the probate process authorizes the executor to distribute the estate’s assets to beneficiaries.

Without a will, the estate is distributed according to intestate succession laws, which may not reflect the testator’s wishes.

Importance of Preparing a Will

Writing a will in Kenya is crucial for several reasons:

• Legal Authority: A valid will ensures the estate is distributed per the testator’s instructions, rather than according to the government’s default laws.
• Preventing Family Conflict: A well-written will helps avoid disputes, especially in complex family situations, such as second marriages or blended families.
• Avoiding Intestate Succession: Dying intestate (without a will) means the government dictates how your assets are distributed, which may not align with your preferences.
• Tax Considerations: Executors are responsible for settling the estate’s taxes, debts, and legal obligations.

Requirements for a Valid Will in Kenya

To create a valid will in Kenya, the following requirements must be met:

• Written and Signed: The will must be in writing and signed by the testator or another person directed by the testator in the presence of witnesses.
• Witnesses: At least two witnesses, who are not beneficiaries, must be present at the signing of the will.
• Competency: The testator must be of sound mind and over 18 years old.
• Oral Wills: In specific cases, an oral will is valid if made before two witnesses within three months of the testator’s death.

Can a Will Be Amended?

A will in Kenya can be amended or revoked at any time, provided the testator is competent. Amendments can be made through a codicil, a document that modifies the original will. Additionally, courts can adjust provisions of a will under certain circumstances, such as divorce or failure to provide for dependents.

Executors and Guardians in a Will

A will typically names an executor, who is responsible for ensuring the estate is distributed according to the testator’s wishes. It may also appoint guardians for minor children and trustees to manage any trusts established by the will. Courts, however, are not bound by these appointments and may act in the best interest of the children or estate.

Contents of a Will

A will in Kenya should contain the following:

• Testator’s Declaration: The testator must declare the document as their final will.
• Gifts: Clearly stated gifts and beneficiaries.
• Executor: The person responsible for administering the estate.
• Signature and Attestation: The testator’s signature, witnessed by at least two competent individuals.

Joint Tenancy and Wills

A joint tenancy with the right of survivorship allows property to pass to the surviving owner upon death. However, joint tenancy is not a substitute for a will, as it limits the testator’s ability to distribute property as they see fit.

Conclusion

Having a will in Kenya is a crucial element of estate planning, ensuring that your assets are distributed according to your wishes. Without a will, your estate could be subject to intestate succession laws, potentially leading to unwanted outcomes. Preparing a valid will provides peace of mind and helps avoid unnecessary legal disputes.

Would you like to draft a will in Kenya? Contact us at info@swkadvocates.com or by phone +254726328555.