Family Trusts in Kenya: When They May Help With Estate Planning
What a family trust is, the situations where it may assist, and the practical questions to resolve before setting one up.
Read insight →Many people put off making a will, assuming their family will simply inherit as they would wish. The reality is more complicated. When someone dies without a valid will, the law, not the deceased, decides how the estate is distributed, and the process is often slower and harder for the family left behind.
What intestacy means
Dying intestate simply means dying without a valid will. When that happens, the deceased no longer has a say in how their property is distributed. Instead, the law of succession steps in and applies a set of general rules to determine who inherits and in what proportions. These rules are designed to produce a reasonable outcome across all families, but precisely because they are general, they may not reflect what any particular person would have chosen.
How an estate is distributed
Under intestacy, the law sets out an order of entitlement, generally prioritising a surviving spouse and children, and then other relatives where there is no immediate family. The shares each receives are determined by the rules rather than by the deceased’s preferences. This can lead to outcomes that surprise families: assets a person assumed would go to a particular relative may be divided differently, and people the deceased might have wished to provide for may receive nothing because the rules do not recognise them.
The administration process
Where there is no will, there is also no executor named to deal with the estate. The family must instead apply to the court for a grant of representation, authorising someone to administer the estate, gather in the assets, settle debts and distribute what remains according to the statutory rules. This process takes time and must follow the required steps. It can be straightforward where the family is in agreement and the estate is simple, and considerably harder where it is not.
Why it is harder for families
The absence of a will places additional burdens on a family at an already difficult time. There is no document expressing the deceased’s wishes to guide or reassure them, which can give rise to disagreement about who should administer the estate and how assets should be shared. Disputes are more likely, and they can be painful and lasting, dividing families over property and perceived fairness. The process of obtaining authority and administering the estate also takes effort and time that a grieving family may struggle to give.
How a will changes things
A valid will changes the picture considerably. It allows you to decide who should benefit from your estate and in what shares, to appoint executors you trust to carry out your wishes, and to make specific provision for particular people or purposes. A will brings clarity, reduces the scope for dispute, and can make the administration of your estate smoother and quicker for those you leave behind. It is one of the most considerate things a person can do for their family.
Taking action
Making a will is neither expensive nor complicated for most people, yet it is repeatedly put off. The cost of not making one falls not on the person who dies but on the family who survives them, in delay, uncertainty and sometimes conflict. If your circumstances change, through marriage, children, property or business, it is also worth reviewing an existing will to keep it current.
We help clients prepare clear, valid wills that reflect their wishes, and we support families through succession and estate administration, including where there is no will. Taking the step to put your wishes in order is a gift of clarity to the people you care about.
Frequently asked questions
What does it mean to die intestate?
To die intestate means to die without a valid will. In that case, the estate is distributed according to the rules set out in the law of succession rather than according to the deceased’s personal wishes.
Who inherits if there is no will?
The law sets out who is entitled and in what shares, typically prioritising close family. Because the rules apply generally, the outcome may not reflect what the deceased would have chosen for their particular family.
Is administering an estate harder without a will?
Often, yes. Without a will appointing executors and setting out wishes, the family must apply for authority to administer the estate and follow the statutory rules, which can be slower and more contentious.
Sources and further reading
- Kenya Law, the official source of Kenyan legislation and case law (kenyalaw.org).
- The Law of Succession Act, which governs succession in Kenya and should be reviewed in its current form.
- The High Court and its succession registries, which deal with grants of representation.
Related services
The information on this website is general in nature, is not legal advice, and does not create an advocate-client relationship. It should not be relied upon for any specific matter. Requirements may change and should be confirmed against the current law, regulations and regulator guidance before action is taken. Please contact Njau & Associates Advocates for advice on your circumstances.