Succession Law in Kenya

Succession law in Kenya governs how a person’s property is handled upon their death whether they had a will or not. It affects every family, every business, and every individual who owns assets. Yet many Kenyans think about succession only after a crisis, leading to family disputes, frozen bank accounts, unclaimed financial assets, and long court battles.

Understanding the Legal Framework of Succession in Kenya

Succession matters in Kenya are primarily governed by the Law of Succession Act (Cap 160) and its subsidiary laws. The key bodies involved include:

1. The Law of Succession Act

This is the main legislation governing:

• Wills

• Intestate succession (where someone dies without a will)

• Distribution of estates

• Rights of dependants

• Grants of representation (probate & letters of administration)

2. Probate & Administration Rules

These govern court procedures, including:

• Filing for probate

• Petitions for letters of administration

• Publication notices

• Objections and disputes

3. Key Government Bodies

• The High Court (Family Division) – Oversees probate and succession disputes.

• The Public Trustee – Administers estates where beneficiaries are minors or disputes exist.

• Chiefs & County Administration – Provide confirmation letters for dependants during intestate applications.

What Forms Part of a Person’s Estate in Kenya?

An estate includes everything a person owns at the time of death, including:

• Land and houses

• Bank accounts and investments

• Shares, SACCO deposits, pensions

• Motor vehicles

• Businesses and partnerships

• Digital assets (e.g., MPESA, PayPal, crypto wallets)

Debts, funeral expenses, and tax liabilities must be deducted before distribution.

If the deceased was married, matrimonial property laws determine what belongs to the surviving spouse before succession is applied.

Gifts Intervivos in Kenya

During One’s Lifetime

A person can give away their property freely, BUT:

• Gifts made shortly before death may be challenged.

• The Married Persons Property Act protects spouses.

• Dependants can contest gifts intended to disinherit them.

On Death

A person may:

• Write a valid will disposing of their property.

• Leave bequests to family, charities, or anyone they choose.

However, Kenya enforces forced heirship principles meaning certain dependants cannot be completely disinherited.

These include:

• Spouse(s)

• Children (biological, adopted, and sometimes stepchildren)

• Parents (in limited cases)

• Any person who was financially dependent on the deceased

Dependants’ Rights and Compulsory Shares

Where a person attempts to give away their entire estate and leave nothing for the dependants, the law steps in.

A dependant can file a “dependant’s claim” under Section 26 of the Law of Succession Act.

The court can:

• Cancel gifts

• Reduce legacies

• Redistribute the estate fairly

This protects vulnerable dependants from disinheritance.

What Happens If You Die Without a Will (Intestate Succession)?

If a Kenyan dies without a valid will, their estate is divided according to intestate succession rules.

1. Where the deceased leaves a spouse and children

• The spouse receives:

  • Household goods and personal effects

  • A life interest in the remainder

• Children inherit equally

• When the spouse dies or remarries, the property devolves to the children

2. If there is a spouse but no children

The spouse inherits the entire estate.

3. If there are children but no spouse

Children inherit the entire estate in equal shares.

4. If there is no spouse and no children

The estate passes to:

1. Parents

2. Siblings

3. Half-siblings

4. Step-siblings

5. Extended relatives
   Only if all fail does the estate revert to the State.

Adopted and Illegitimate Children: Do They Inherit?

In Kenya:

• Adopted children inherit just like biological children.

• Children born out of wedlock also have equal inheritance rights.

• Paternity can be established through DNA, documents, or conduct.

Wills in Kenya: Requirements and Validity

A valid Kenyan will must:

• Be written

• Be signed by the testator

• Be witnessed by two competent witnesses

Other forms include:

• Oral wills (valid only under strict conditions)

• Statutory wills for persons in the armed forces

Foreign wills are also recognized if they follow the laws of the country where they were made.

Administration: How Estates Are Handled After Death

Administration depends on whether the deceased left a will.

1. Testate Estate

• Executor named in the will applies for Probate.

• Executor administers and distributes the estate.

2. Intestate Estate

• Family members apply for Letters of Administration.

• All heirs must consent.

• Administrator(s) collect assets, pay debts, and distribute the estate.

If there are disputes, the court may appoint:

• A Public Trustee

• A neutral administrator

• A professional executor (e.g., a law firm)

How Can a Will or Succession Process Be Challenged?

A will may be challenged on grounds of:

• Coercion or undue influence

• Fraud or forgery

• Lack of mental capacity

• Lack of proper witnessing

Dependants may also challenge:

• Unfair distribution

• Attempts to disinherit them

• Questionable gifts given shortly before death

Minors and Persons Lacking Capacity

Minors

Parents or guardians manage minor children’s property, but major decisions require court oversight.

Adults Lacking Capacity

The court may appoint:

• A guardian

• A manager

• A trustee

A person may also appoint someone in advance through a Power of Attorney.

Why Succession Planning Is Critical in Kenya

Thousands of Kenyan families suffer delays, conflicts, and irreversible losses due to poor estate planning.

A well-planned estate ensures:

• Protection of your dependants

• Smooth transition of assets

• Reduced disputes

• Lower legal costs

• Business continuity

Silvana & Associates Advocates is a premier corporate and private client law firm based in Nairobi, Kenya, offering specialized expertise in Succession Law, Estate Planning, Wealth Protection, and Family Business Continuity. We understand that legacy planning is one of the most important decisions individuals and families make. Our role is to bring clarity, security, and long-term protection to our clients’ assets ensuring that what they have built is seamlessly safeguarded and passed on to future generations.