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Probate and Succession

The law of succession governs the legal transfer of a deceased person’s estate to their rightful heirs or beneficiaries. It addresses what happens to a person’s property upon death and outlines the procedures for distributing their estate, whether the individual died testate (with a valid will) or intestate (without a will).

In Kenya, the applicable framework is set out in the Law of Succession Act, which provides the legal foundation for handling wills, probate, and estate administration.

Testate vs. Intestate Succession

Testate Succession

If the deceased left a valid will, their estate is distributed in accordance with the instructions outlined in that will. Before any distribution can occur:

  • The executor or personal representative must apply for and obtain a grant of probate.

  • The grant confirms the authenticity of the will and legally authorizes the executor to administer the estate.

  • All debts and obligations must be settled before distributing any remaining assets to beneficiaries.

Intestate Succession

  • If the deceased did not make a will:

  • Their estate is distributed according to the laws of intestacy under the Law of Succession Act.

  • A family member or close relative must apply for letters of administration, which authorize them to administer and distribute the estate in accordance with legal guidelines.

The Advocate’s Legal Role

An advocate guiding a client through succession planning or estate administration is under a legal and ethical duty to ensure:

  • The will accurately reflects the client’s instructions and intentions.

  • The testator has full legal capacity to make a will at the time of drafting.

  • There is clear intention to make a will, free from coercion or undue influence.

  • The will complies with all legal formalities, including execution and witnessing requirements under Kenyan law.