Inheritance Laws in Kenya
Inheritance laws in Kenya are primarily governed by the Law of Succession Act, which applies to the estates of individuals who die intestate (without a will) or testate (with a will). The laws are designed to ensure that the deceased's estate is distributed fairly among family members, including those with financial responsibilities or close family ties.
The Law of Succession Act provides a legal framework for both Muslims and non-Muslims in Kenya, though Muslim inheritance follows Islamic law (Sharia) in certain circumstances, and non-Muslims are governed by the Civil Law (Law of Succession Act).
1. Testate Succession (With a Will)
In Kenya, individuals have the right to make a will to specify how their estate should be distributed. A valid will allows the deceased to decide how to divide their property among beneficiaries.
Key Features of Testate Succession:
- Will Formalities: To be valid, a will must be in writing, signed by the testator, and witnessed by at least two people who are not beneficiaries. It is recommended that the will be registered with the Kenya Law Society or a lawyer to ensure its legitimacy.
- Executor: The person appointed by the testator to carry out the instructions in the will is known as the executor. The executor is responsible for administering the estate, paying debts, and distributing assets according to the will.
Revocation of Will:
- A will can be revoked at any time before the testator's death. This may be done by making a new will, by a written declaration, or by physically destroying the previous will.
2. Intestate Succession (Without a Will)
When a person dies without a will (intestate), their estate is divided according to the Law of Succession Act. The Act provides for a set of rules to ensure that the estate is fairly distributed among surviving relatives.
Order of Heirs:
The Act outlines the following categories of heirs and their priority in inheriting the estate:
Spouse and Children:
Spouse: The surviving spouse is entitled to a share of the deceased’s estate. If the deceased was married under customary law, the surviving spouse’s entitlement will depend on the specific customary practices, although these must be consistent with constitutional guarantees of equality.
Children: The children of the deceased inherit the estate, and they share equally in the distribution. This applies regardless of whether the children are biological or legally adopted.
Distribution Example:
- If the deceased leaves a surviving spouse and children, the estate is divided into two parts: half for the spouse and half for the children.
- If there is no surviving spouse, the entire estate will go to the children, divided equally among them.
Parents and Siblings:
- If there is no surviving spouse or children, the estate is distributed among the deceased’s parents and siblings.
- The father and mother each receive an equal share of the estate.
- If only one parent survives, they will inherit the entire estate, and if neither parent survives, the estate will pass to the deceased’s siblings or their descendants.
More Distant Relatives:
- If the deceased has no surviving spouse, children, or parents, the estate will pass to more distant relatives such as uncles, aunts, nieces, or nephews.
- The estate is distributed based on a priority list of relatives as determined by the Law of Succession Act.
Special Provisions for Children:
- If there is a minor child (under the age of 18), the inheritance may be administered by a guardian until the child reaches the age of majority.
- The share of the estate allocated to minor children may be held in a trust by the appointed guardian.
3. Muslim Inheritance (Sharia Law)
In Kenya, Muslims are subject to Islamic Sharia law for inheritance. This means that when a Muslim dies, the distribution of their estate follows Sharia principles, which may differ from the Civil Law.
Key Features of Muslim Inheritance:
- Fixed Shares: Sharia law provides fixed shares for certain heirs, such as spouses, children, and parents.
- Sons receive twice the share of daughters.
- The surviving spouse’s share is dependent on whether there are children.
- Parents also have a defined share of the estate.
- Will: Muslims can make a will, but the will cannot dispose of more than one-third of the estate. The remaining two-thirds must follow the Sharia rules of inheritance, which prescribe fixed portions for heirs.
Example of Sharia Distribution:
- If a Muslim dies and leaves behind a wife and children (two sons and one daughter):
- The wife might receive 1/8 of the estate (if there are children).
- The remaining estate is divided between the children, with the sons each receiving twice the share of the daughter.
4. Inheritance of Property
Real Property (land and buildings) is subject to the same rules as personal property (money, valuables, etc.). In Kenya, there are several important points to note regarding the inheritance of property:
Land: Inheritance of land is regulated by both the Land Act and the Law of Succession Act. If the deceased’s property includes land, the transfer of ownership requires registration with the Land Registrar. Family members who inherit land must ensure they fulfill all legal requirements for the transfer of ownership.
Joint Property: If the deceased owned property jointly with a spouse, the surviving spouse typically retains ownership of their share, while the deceased's share passes to the heirs according to the Law of Succession Act.
5. Debts and Liabilities
Before any assets are distributed to heirs, the debts and liabilities of the deceased must be settled. This includes:
- Funeral expenses.
- Outstanding loans, mortgages, or debts owed to creditors.
- Taxes and legal fees associated with the estate administration.
Heirs are not personally liable for the deceased's debts, but the estate is required to pay off any obligations before distributing the remaining assets.
6. Inheritance Tax
Kenya does not impose an inheritance tax or estate tax. However, the estate may be subject to certain administrative costs and registration fees during the transfer of assets, especially real estate.
7. Inheritance Process
The inheritance process in Kenya typically follows these steps:
- Probate: The probate court will verify the will (if one exists) and appoint an executor (if necessary) to manage the estate.
- Estate Inventory: An inventory of the deceased's assets and liabilities is prepared.
- Debt Settlement: Any outstanding debts and liabilities are paid from the estate.
- Distribution of Assets: The remaining estate is distributed to the heirs, as per the terms of the will or the provisions of the Law of Succession Act (for intestate succession).
- Transfer of Property: Ownership of the deceased’s property, including land and real estate, is transferred to the heirs.
8. Disputes Over Inheritance
Disputes over inheritance may arise, especially in cases of intestate succession or disagreements over the validity of a will. In such cases, the matter can be taken to Kenyan courts for resolution. Disputes may involve:
- Claims by relatives who feel they are entitled to a share of the estate.
- Challenges to the validity of the will.
- Claims by second spouses or other dependents.
Conclusion
Kenya's inheritance laws are designed to provide clear rules for the division of a deceased's estate. For non-Muslims, inheritance is governed by the Law of Succession Act, which provides for the division of property among a deceased’s spouse, children, and other relatives. Muslims follow Sharia law for inheritance, which has fixed shares for specific heirs. There is no inheritance tax in Kenya, but administrative fees may apply. Disputes can be resolved through the courts, and the inheritance process typically involves the appointment of an executor, inventorying the estate, and settling debts before distribution.
RELATED Blog
0 comments