land succession is the most common channel by which one can acquire or legally inherit and own land in Kenya. It is a traditional right to inherit property for the purpose of preserving the family heritage. In most cases, Kenyans rarely follow the law and instead transmit land rights upon death. Therefore, many inheritors avoid to follow the process of acquiring the actual title deeds as they consider the process of legal land succession to be expensive, tedious, inaccessible and complex. Read this article for more information or partner with us for legal land inheritance or acquisition.
This Article explains the processes that should be employed by the deceased’s dependents in order to obtain rights over the deceased’s property smoothly and efficiently. You can as well download Law of Succession Act to read more.
What is succession?
- Succession is the right and transmission of the rights and obligations of the deceased to his heirs.
- Kenyan law of succession prescribes the rules which determine what ought to happen to a person’s estate after his or her death. It is also referred to as the law of inheritance i.e. transmission of property rights from the dead to the living.
- The rules of succession identify the beneficiaries entitled to succeed to the deceased’s estate and the extent of the benefits they are to receive. The Kenya law of succession determines the different rights and duties that persons (for example, beneficiaries and creditors) may have in a deceased’s estate.
Types of succession
- Intestate succession: is where a person dies without having made a will or the will is invalidated. The procedure involves having the Administrators obtain a grant of Letters of Administration Intestate. This gives them the authority to deal with the estate of the deceased person in accordance with the provisions of the law. The processes of obtaining a grant of Letters of Administration Intestate are through a petition for Letters of Administration Intestate and receiving a Confirmation of Letters of Administration Intestate.
- Testate succession: refers to situations where the deceased leaves behind a valid will declaring his or her intentions regarding the disposition of his property after his death duly made and executed in accordance with the law of succession Act. The procedure involves the executors or executrices obtaining a grant of probate which gives the executors or executrices the authority to handle any matters pertaining to estate of the deceased person in accordance with the provisions of the Act . The processes of obtaining a grant of probate are through a petition for grant of probate and thereafter receiving a confirmation of grant of probate.
Procedure for procurement of grants for land succession
Petition for grant of probate:
- The executors of the deceased person’s estate will be required to petition the High Court of Kenya for a Grant of Probate. The petition is accompanied by an affidavit which must include a schedule of the assets and liabilities of the deceased person’s Estate with their approximate value. Proof of ownership of the assets must also be attached.
- The petition is then filed at the Family Division of the respective High Court and the Court Registrar peruses the petition to check if it is in order and thereafter, assesses the filing fees due and payable to the Judiciary of Kenya. Upon payment of the filing fees, a notice of the petition is advertised in the Kenya Gazette so as to notify the public of the petition and for any person who has a claim on the estate of the deceased to have an opportunity to object to the Grant of Probate being given to the executor.
- After 30 days of the notice of the petition appearing in the Kenya Gazette, an application for extraction of the signed and sealed Grant of Probate – which will indicate the executor(ices) as the lawfully appointed executor(ices) of the Estate – should be made by the executor(ices) to the High Court.
Note: In testate succession, you need to file the following documents:
- Form P.A 78 (petition)
- Form P & A 3 (affidavit)
- The original will plus 2 photocopies of the will
- Original death certificate.
Confirmation of grant of probate:
Upon issuance of the signed and sealed Grant of Probate, the executor(ices) must wait for the statutory 6 months’ period to lapse before applying for the Grant to be confirmed after which he/ she/ they will be issued with a Certificate of Confirmation of Grant of Probate and this Certificate gives them power to transfer the Estate’s assets in accordance with the provisions of the Will.
Petition for letters of administration intestate
- There should be at least 2 persons who must petition the High Court for Letters of Administration Intestate. Preference is usually given to the surviving spouse but this does not prevent the adult members of the family from agreeing amongst themselves on who to petition the court if a surviving spouse is not in a position to do so. The petition should be filed at the nearest High Court to where the deceased person resided at the time of his/ her death.
- The petition for Letters of Administration Intestate is a formal legal document which must be accompanied by an affidavit in support from the petitioners. The petition should include a schedule of the assets and liabilities of the Estate with the approximate values, proof of ownership, the deceased’s death certificate and a letter from the chief in the locality of the deceased’s place of domicile stating that the chief knew the deceased person and giving details of the estate’s beneficiaries and dependents as known to him.
- It is a mandatory requirement for the petitioners to swear affidavits of justification satisfying the court that the petitioners are solvent and are able to comply with their obligations as Administrators. It is also a mandatory requirement for the petitioners to obtain other independent persons to be sureties for the full value of the net Intestate Estate who in turn will have to satisfy the court as to their solvency.
- The petition is then filed at the Family Division of the respective High Court after which the Deputy Registrar will peruse the petition and assess its filing fees which is payable to the Judiciary of Kenya. Upon payment of the filing fees, a notice of the petition is advertised in the Kenya Gazette so as to notify the public of the petition and for any person who has a claim on the Estate of the deceased to have an opportunity to object to the Grant of Probate being given to the executor.
- After 30 days of the notice of the petition appearing in the Kenya Gazette, an application for extraction of the signed and sealed grant of Letters of Administration – which will indicate the Administrators as the lawfully appointed Administrators of the Estate and state that they have undertaken to faithfully administer the Estate – should be made by the Administrators to the High Court.
Confirmation of the letters of administration intestate:
- Upon issuance of the signed and sealed Grant of Letters of Administration, the Administrators must wait for the statutory 6 months’ period to lapse before applying for the Grant to be Confirmed after which he/ she/ they will be issued with a Certificate of Confirmation of Grant of Letters of Administration.
- At this stage, the Administrators of the Estate shall inform the court on the mode of distribution of the estate. The Certificate of Confirmation of Grant of Letters of Administration intestate will be issued by the court once it is satisfied with the mode of distribution and endorses it. The Administrators will then have the authority to transfer the estate’s assets to the beneficiaries as per the mode of distribution endorsed by the court.
Exceptions to time for Confirmation of Grant.
There are exceptions under the Law of Succession Act where:
- Holders of the grants of representation (i.e. grant of probate and grant of letters of Administration Intestate) may apply to the court, and the court may direct for the Grant to be confirmed before the expiry of the 6 months period if the court is satisfied that:
- There is no dependent of the deceased or that the only dependents are of full age (adults) and consent to the application;
- That it would be expedient in all circumstance of the case.
- An applicant when making his/her petition to court also applies for the immediate issue of a confirmed grant of representation, if it is satisfied that:
- There is no dependent of the deceased other than the petitioner;
- No estate duty is payable in respect of the estate; and
- It is deemed to be just and equitable in all circumstances of the case to immediately issue a confirmed grant of representation.
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