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What happens if I die without a will?

Introduction

In Kenya, the distribution of a deceased person's estate who dies without a will is governed by the Law of Succession Act (Cap 160). This situation is referred to as dying intestate. The Act provides a comprehensive framework for the administration and distribution of the deceased's estate to ensure that the property is fairly and equitably distributed among the rightful heirs.

Table of Contents

  1. Legal Framework

    • Law of Succession Act (Cap 160)

    • Relevant Articles and Sections

  2. Intestate Succession

    • Definition and Scope

    • Priority of Beneficiaries

  3. Administration of the Estate

    • Appointment of Administrators

    • Duties and Powers of Administrators

  4. Distribution of the Estate

    • Surviving Spouse and Children

    • Other Relatives

    • Special Cases

  5. Conclusion

1. Legal Framework

Law of Succession Act (Cap 160)

The primary legal framework governing intestate succession in Kenya is the Law of Succession Act (Cap 160). This Act outlines the procedures and rules for the distribution of the estate of a person who dies without leaving a will.

  • Section 2: Application of the Act

  • Section 32: Exclusion of certain areas

  • Section 35: Provision for surviving spouse and children

  • Section 36: Provision for surviving spouse without children

  • Section 38: Where intestate has left a surviving child or children but no spouse

  • Section 39: Where intestate has left no surviving spouse or children

2. Intestate Succession

Definition and Scope

Intestate succession refers to the process by which the estate of a deceased person is distributed when they die without a valid will. The Law of Succession Act provides a clear hierarchy of beneficiaries and the manner in which the estate should be divided.

Priority of Beneficiaries

The Act prioritizes the distribution of the estate to the closest relatives of the deceased. The hierarchy is as follows:

  1. Surviving Spouse and Children: They are given the highest priority.

  2. Parents: If there are no surviving spouse or children.

  3. Siblings: If there are no surviving spouse, children, or parents.

  4. Extended Family: If there are no immediate family members, the estate may be distributed to more distant relatives.

3. Administration of the Estate

Appointment of Administrators

When a person dies intestate, the court appoints administrators to manage and distribute the estate. The process involves:

  • Application for Letters of Administration: Interested parties, usually close relatives, must apply to the court for letters of administration.

  • Gazettement: The application is published in the Kenya Gazette to notify any potential claimants.

  • Issuance of Letters of Administration: If there are no objections, the court issues letters of administration to the appointed administrators.

Duties and Powers of Administrators

The administrators have several duties and powers, including:

  • Collection and Preservation of Assets: They must identify, collect, and safeguard the deceased's assets.

  • Payment of Debts and Liabilities: They are responsible for settling any debts and liabilities of the deceased.

  • Distribution of the Estate: They must distribute the remaining estate to the rightful beneficiaries according to the Law of Succession Act.

4. Distribution of the Estate

Surviving Spouse and Children
  • Section 35: If the deceased leaves a surviving spouse and children, the spouse is entitled to:

    • The personal and household effects of the deceased.

    • A life interest in the remaining estate, which reverts to the children upon the spouse's death.

  • Section 38: If the deceased leaves children but no spouse, the estate is divided equally among the children.

Other Relatives
  • Section 39: If the deceased leaves no surviving spouse or children, the estate is distributed to other relatives in the following order:

    • Parents

    • Siblings

    • Half-siblings

    • Grandparents

    • Uncles and Aunts

    • Cousins

Special Cases
  • Section 36: If the deceased leaves a surviving spouse but no children, the spouse is entitled to:

    • The personal and household effects of the deceased.

    • The first Kshs. 10,000 or 20% of the net intestate estate, whichever is greater.

    • A life interest in the remaining estate, which reverts to the deceased's family upon the spouse's death.

Conclusion

Dying without a will in Kenya triggers the application of the Law of Succession Act (Cap 160), which provides a structured approach to the administration and distribution of the deceased's estate. The Act ensures that the estate is distributed fairly among the rightful beneficiaries, prioritizing the surviving spouse and children, followed by other close relatives. The process involves the appointment of administrators who

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