What is succession? This is the process of passing the legal rights of the deceased property to his/her successors. There are two types of succession processes namely; testate succession and intestate succession.
Testate succession is where a person has a will which takes effect after his or her death. While intestate succession is where a person dies and did not have a will or where the person dies and had a will but has been declared invalid by the courts or the will in effect does not provide for all the assets or liabilities.
This article will explain the process of succession when someone dies intestate and how will the deceased’s beneficiaries be provided for under law.
INTESTATE SUCCESSION
Inheritance by beneficiaries is based on the provisions of the Law of Succession. The law entitles the following persons to petition Court for Letters of Administration and/or become beneficiaries to the deceased estate in order of priority: – The Spouse + Children; or If the deceased had no children: the deceased’s father; or if dead, the deceased’s mother; or if dead, the deceased’s siblings; or if dead, the deceased’s children of siblings; or if dead, the deceased’s half siblings; or if dead, any other blood relative. If the deceased had no relatives, the net estate is put into the Government of Kenya’s Consolidated Fund
Where the Deceased had a polygamous family, the Estate is inherited among the families according to the number of children in each house and including any surviving spouse as an additional unit to the number of children. For instance, where a house has four children and one wife, then that house is considered as having five units and each house divides the Property or Estate according to the units.
To kick start the process of inheriting the estate of the deceased in intestacy, a beneficiary has to do the following:
Petition the court for grant of letters of administration. The importance of these letters of administration grants you the right to administer the estate of the deceased, any person who tries to administer the estate of the deceased without the grant of letters of administration is guilty of the offence of intermeddling and can there be imprisoned or fined. The administrator has a duty to safeguard the interests of the beneficiaries of the estate.
For one to apply for this grant of letters of administration one needs to have the following documents :
- A letter from the area chief listing all the beneficiaries of the property, their ages and their relationship to the deceased
- A certified copy of the death certificate of the deceased
- IDs of the persons petitioning the court.
- IDs of the beneficiaries.
The law allows between 2 to 4 people to apply to be administrators of the deceased in intestate succession. Once all the beneficiaries sign the court documents, the applicant shall proceed to file them in court and fees are assessed.
Once filed in court and the requisite fees are paid, a Petition is published in the Kenya Gazette as notice to members of the public of an application for grant of letters of administration for a period of 30 days. The reason for publishing this application in the Kenya Gazette is to; firstly, notify the public of the person intending to administer the estate of the deceased and allow for any person who has any contention to object, secondly, it is a requirement by law and thirdly if any beneficiary is has been left out in the application, they may apply to the court to be included.
Once the gazettement period has lapsed and no objection filed, the court will issue the applicant said letters of administration for a period of 6 months to give the applicants time to recover the deceased’s assets, agree on the mode of distribution of the estate among the beneficiaries BUT the administrators do not have the power to distribute the estate at this stage. In default of any agreement on the mode of distribution of the estate by all the beneficiaries, the matter may be referred to the public trustee for necessary distribution of the estate in accordance with Section 40 of the Law of Succession Act and in any event, within a period of six(6) months.
To get the power to distribute the assets, the grant Letters of Administration have to be confirmed by the Court. Such confirmation is done once the 6 months lapse. The applicants can proceed to apply for a confirmation of the grant of letters of administration before one can proceed to distribute the deceased assets. The law requires the administrator to complete administration of the Estate within six (6) months of confirmation of the grant of Letters of Administration or such longer time as the Court may allow. They also have an obligation to produce to the Court a full and accurate inventory of the assets and liabilities of the Deceased as well as a full and accurate account of all the dealings therewith and the completed administration.
