ADMINISTRATION OF ESTATES- TESTATE SUCCESSION

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To this end, we hereby give the legal alert on the following:

ADMINISTRATION OF ESTATES- TESTATE SUCCESSION

Introduction:

Administration of estates in Kenya is governed by the Law of Succession Act Cap 160.

Administration of an Estate:

This refers to the management and distribution of the estate of a dead person by an administrator or an executor. Succession and Inheritance can be of two kinds; testate inheritance which means inheritance as per the Will of the deceased and intestate succession, where the deceased dies without making a Will. In this article we shall be dealing with testate succession.

Testate Succession:

Testate Succession refers to the process of disposal of a person’s property after their death according to a will or a testament. Unlike intestate succession where there are no such arrangements, in testate succession the testator (the maker of a will) has the freedom to decide who should benefit from his property. When discussing wills, it is important to note that they have different forms. They can be made either orally or in writing.

Oral Will

Oral wills are governed by Section 9 of the Law of Succession Act.

For an oral will to be deemed valid it must be made before two or more competent witnesses and the testator must have died within a period of three months from the date of making the will. Normally such wills are made in a state of panic or fear or anxiety e.g., when the testator is very ill or in a state of imminent danger. Section 9 (1) (b) of the Act, however, provides an exception to these requirements. The exception covers persons in active service in the Armed Forces or the Merchant Marine in active service.

Conclusively, where a conflict arises between the contents of a written will and an oral will, the contents of the written will shall prevail. This is stipulated precisely in Section 10 of the Act.

Written Will

A will may be defined as a declaration of the intentions of a person pertaining to the devolution of his free property that is meant to take effect upon death. This, therefore, means that while the testator is alive a will does not limit his rights of ownership nor confer any benefits to anyone.

When preparing a will, the maker must be free of any coercion or influence. It is also advisable for the maker to appoint an executor to administer the Will upon death. The maker of a Will can always revoke it before death.

Validity of a Will or Testament

A will is only valid if it is made in the proper form by a person of testamentary capacity.
As a rule, minors and persons of unsound mind are incapable of making a valid will. Section 5 (1) of the Law of Succession Act embodies the principle of testamentary freedom.

Formal Requirements for a Written Will:

Section 11 of the Act provides that no written will shall be valid unless it satisfies the following requirements;

1. It is signed by the testator or affixed by the testator’s mark and if it’s signed by any other person, it has to be in the presence of and by the direction of the testator;

2. That the document must be signed in such a way that the testator meant it to give effect.

 3.The document is acknowledged by the testator in the presence of two or more competent witnesses present at the same time;

4. Each witness must attest and sign the will in the presence of the testator.

Necessities in Preparation of wills

When preparing a will, the maker should have the following in mind;

• A tabulation of assets and their estimated value

• How they would wish various dependents to inherit the assets.

• An explanation of the factors they have taken into consideration in apportionment

• Proposed executors of the Will. An executor will be the person in charge of administering the estate and ensuring its division.

• How they would like to divide future assets amongst their dependents (future assets are those obtained after the date of the Will)

Estate Trusts as Alternatives to Wills

If you want to avoid the probate process entirely you can create a trust. A trust transfers assets to your beneficiaries immediately without facing any obstacles such as delays on the distribution process or the possibility of a family member who is excluded from your will challenging the terms of your will.

There are many types of trusts, but   irrevocable and revocable trusts are the most common.

Revocable Trust

This is the type of trust that is commonly used by estate planning lawyers because of its flexibility. Just like a will, you can change its terms, by adding or removing beneficiaries, or cancel the trust entirely.

In a revocable living trust, you retain control over your personal assets during your lifetime. Unlike irrevocable trusts where you appoint a trustee, you can manage a revocable trust by yourself.

Unfortunately, in revocable trusts there are no such advantages as protection from creditors or law suits, since the estate is still considered yours. The estate also will lack tax advantages.

Irrevocable Trust

An irrevocable trust involves giving up control of your assets during your lifetime. You name a trustee who manages the trust and the assets you place in it. The advantages that come with this is that your assets are protected from creditors and your estate will have tax advantages.

We trust that you shall find this information useful and should you require further information or discussion on this matter, kindly get in touch with us on info@kibatiaadvocates.com

Please note that this information is for public consumption and not intended to offer professional legal advice.