Intestate Succession is conducted when a person dies without leaving a will. It is done by the Probate Court, abiding by the provisions given in the Law of Succession Act, CAP 160 Laws of Kenya.
The process of Intestate Succession is conducted in the following steps:
- Petitioning Court for grant of Letters of Administration.
A Letter of Administration is a legal document issued by the Court that grants an individual the authority to manage the estate of a deceased person. The letters of Administration designate the Petitioner as the Personal Representative of the deceased. According to Section 66 of the LSA, Grant of Letters of Administration are given to the blood relatives of the deceased in the following order; spouse(s), children, parents, siblings, step-siblings, blood relatives up to the sixth degree of consanguinity, the Public Trustee, and creditors of the deceased.
- Publication of the Application in the Kenya Gazette.
Once the Grant of Letters of Administration have been applied for, the Application is Published in the Kenya Gazette. This publication invites anyone who might have an Objection to the granting of the Letters of Administration to the Petitioner to lodge their objection with the probate court within 30 days.
If an objection is lodged, the court will notify the objector to file an answer to the Application and a cross-application within a specified timeframe and thereafter their objection would be heard and determined on merit.
Section 69 of the LSA provides that if no answer or cross-application is filed as required, the court may proceed with the original application. If an answer and cross-application are filed, the court will consider them before making a grant.
If no objection is raised within the 30 days or if any objections raised have been resolved or dismissed, the Court grants the Letters of Administration to the Petitioner.
- Granting of the Letter of Administration to the Petitioner
Here the court grants the Petitioner Letters of Administration the Petitioner. The petitioner becomes the personal representative of the estate of the deceased and has the power to deal with the property in the following ways as per Section 83 of the LSA;
- They are responsible for covering the expenses of a reasonable funeral for the deceased from the estate.
- They must gather all free property of the deceased, including debts owed to them and monies payable to the personal representatives due to the deceased’s death.
- They must also pay all expenses related to obtaining their grant of representation and other reasonable administration expenses, including any estate duty.
- Additionally, personal representatives need to ascertain and settle all debts of the deceased from the estate.
However, it is key to note that the representative may not distribute the property to other beneficiaries until the Letters of Administration are confirmed.
- Filing of Application for confirmation
When a holder of an unconfirmed grant seeks confirmation, they must apply using the requisite form in the cause where the grant was issued. The Application for confirmation essentially seeks the Court’s approval to the proposed distribution of the Estate to the beneficiaries
- Confirmation of Grant of Letters of Administration
After six months of issuance of the Letter of Administration, and after the successful filing of summons for Confirmation, the Letters of Administration are ready for confirmation. At the hearing of the application for confirmation the court shall read out in the language that the beneficiaries understand the grant or the method of distribution and confirm whether all beneficiaries agree to the specified method.
Any party that wishing to object to the proposed confirmation of a grant shall file an Affidavit of Protest in against such confirmation stating the grounds of his objection which shall be heard on the date set for confirmation. The court shall then hear the applicant and each protester and any other person interested, whether such persons appear personally or appears represented by an Advocate.
During the Hearing, the court may confirm the grant, refer it back for further consideration by the applicant, adjourn the hearing to gather additional evidence, or make any other necessary order to satisfy itself regarding the expediency of confirming the applicant as the grant holder. Additionally, the court may address issues related to the identities, shares, and interests of the persons beneficially entitled, as well as any other arising issues.
- Distribution of the Estate.
If the Grant is confirmed that the Personal Representative then distributes the Property among the beneficiaries in accordance with the confirmed mode of distribution. They must also complete the administration of the estate, excluding continuing trusts, within six months of the grant’s confirmation or within an extended period allowed by the court.
If required by the court, either on its own initiative or upon application by any interested party, the personal representative must provide a detailed inventory of the deceased’s assets and liabilities and a comprehensive account of all dealings to date. Finally, they must complete the estate administration, excluding continuing trusts, and provide the court with a thorough account of the completed administration if requested.
Date: August 13, 2024, By: Anne Gathirwa
For more insights pertaining to this matter, you can reach the writer at annegathirwalaw@gmail.com. You can also contact us at MMS Advocates, Lower Duplex Apartments, LOWER HILL ROAD, or email us at info@mmsadvocates.co.ke.