Nairobi
By Aileen Aluso Ingati
When a person dies having written a valid will, his or her property is administered and disposed off in accordance with the provisions of his or her will. A person is said to have died testate if he or she left behind a valid will.
The procedure involves the executors or executrices obtain a grant of probate, which gives the executors or executrices the authority to handle any matters pertaining to estate of the deceased person in accordance with the provisions of the will and the Law of Succession Act (Cap 160), Laws of Kenya.
The processes of obtaining a grant of probate are through a petition for grant of probate and thereafter confirmation of grant of probate.
When a person dies having not written a will or where the will is invalid, his or her property is administered and disposed off in accordance with the provisions of the act. A person is said to have died intestate if he or she did not leave behind a valid will or no will at all.
The procedure involves having the administrators obtain a grant of letters of administration intestate. This gives them the authority to deal with the estate of the deceased person in accordance with the provisions of the law.
The processes of obtaining a grant of letters of administration intestate are through a petition for letters of administration intestate and confirmation of letters of administration intestate.
The following contents of this article entails the procedures for applying for the grant of probate and letters of administration intestate.
Petition for grant of probate: The executors of the deceased person’s estate will be required to petition the High Court of Kenya for a grant of probate. The petition is accompanied by an affidavit, which must include a schedule of the assets and liabilities of the deceased person’s estate with their approximate value. Proof of ownership of the assets must also be attached.
The petition is filed at the Family Division of the respective High Court and the Court Registrar peruses the petition to check if it is in order and thereafter assesses the filing fees due and payable to the Judiciary of Kenya.
Upon payment of the filing fees, a notice of the petition is advertised in the Kenya Gazette to notify the public of the petition and for any person who has a claim on the estate of the deceased to have an opportunity to object to the grant of probate being given to the executor (ices).
After 30 days of the notice of the petition appearing in the Kenya Gazette, an application for extraction of the signed and sealed grant of probate, which will indicate the executor(ices) as the lawfully appointed executor(ices) of the estate – should be made by the executor(ices) to the High Court.
Confirmation of grant of probate: Upon issuance of the signed and sealed grant of probate, the executor(ices) must wait for the statutory 6 months’ period to lapse before applying for the grant to be confirmed after which he or she will be issued with a certificate of confirmation of grant of probate and this certificate gives them power to transfer the estate’s assets in accordance with the provisions of the will.
Petition for letters of administration intestate: There should be at least two people who must petition the High Court for letters of administration intestate. Preference is usually given to the surviving spouse but this does not prevent the adult members of the family from agreeing amongst themselves on who to petition the court if a surviving spouse is not in a position to do so. The petition should be filed at the nearest High Court to where the deceased person resided at the time of his or her death.
The petition for letters of administration intestate is a formal legal document that must be accompanied by an affidavit in support from the petitioners.
The petition should include a schedule of the assets and liabilities of the estate with the approximate values, proof of ownership, the deceased’s death certificate and a letter from the chief in the locality of the deceased’s place of domicile stating that the chief knew the deceased person and giving details of the estate’s beneficiaries and dependants as known to him.
It is a mandatory requirement for the petitioners to swear affidavits of justification satisfying the court that the petitioners are solvent and are able to comply with their obligations as administrators. It is also a mandatory requirement for the petitioners to obtain other independent persons to be sureties for the full value of the net intestate estate who in turn will have to satisfy the court as to their solvency.
The petition is then filed at the family division of the respective high court after which the deputy registrar will peruse the petition and assess its filing fees which is payable to the Judiciary of Kenya. Upon payment of the filing fees, a notice of the petition is advertised in the Kenya Gazette to notify the public of the petition and for any person who has a claim on the estate of the deceased to have an opportunity to object to the grant of probate being given to the executor(ices).
After 30 days of the notice of the petition appearing in the Kenya Gazette, an application for extraction of the signed and sealed grant of letters of administration – which will indicate the administrators as the lawfully appointed administrators of the estate and state that they have undertaken to faithfully administer the estate – should be made by the administrators to the high court.
Confirmation of the letters of administration intestate: Upon issuance of the signed and sealed grant of letters of administration, the administrators must wait for the statutory 6 months’ period to lapse before applying for the grant to be confirmed after which he or she they will be issued with a certificate of confirmation of grant of letters of administration.
At this stage, the administrators of the estate shall inform the court on the mode of distribution of the estate. The certificate of confirmation of grant of letters of administration intestate will be issued by the court once it is satisfied with the mode of distribution and endorses it. The administrators will then have the authority to transfer the estate’s assets to the beneficiaries as per the mode of distribution endorsed by the court.
Ms. Aileen Aluso Ingati is a Senior Partner at the firm of Kazi Advocates LLP. If you require any further information and/ or clarification on its contents, please contact her at aluso@kaziadvocates.com or info@kaziadvocates.com
