Land Distribution After The Loss Of A Loved One

Death is inevitable yet most people do not plan for their families after they pass on. The process of transferring rights of properties left behind by a deceased family member is known as succession. In Kenya, this process is governed by the Law of Succession Act, which deals with the inheritance of property, debts, rights, and obligations upon the death of an individual.

A will is a legal declaration by a person of their wishes regarding distribution of their property upon their death.[1] Since it is a legal document, it must be duly executed (meaning signed by the deceased), it must have witnesses to the signature, who also sign the will, must not be written under duress and the person making the will must be of sound mind[2]. If a person dies having written a will, we say that the person died testate while when a person dies without a will, we say that the person died intestate.

Inheriting Land Without A Will: – Intestate Succession

Intestacy occurs under three circumstances:

• When a person dies without making a will
• When the court declares a will to be null and void
• When a person revokes his will and dies before executing a new one.

Acquisition of the Death Certificate: The most important step upon the death and burial of a loved one would be to obtain the death certificate to commence the process of administration of the estate of the deceased person. An application is made to the registrar of births and deaths in the respective sub-county where the deceased passed away. This is accompanied with a burial permit, the deceased person’s identity card and a letter from the chief where necessary. Finally, the requisite fee is paid, and the certificate collected within a week.

Letter from the Chief: Where there is no will, first, the family obtains a letter from the local chief who clarifies the facts of the deceased properties and estate, his/her assets and liabilities as well as known spouses and heirs. The letter from the chief is addressed to the court and they are entrusted with this mandate as they are expected to be closer to the family and hence in the know of all the relationships in the family of the deceased. Importantly, assets may be left out in the chief’s letter; instead, focusing on the familial tie known to the chief about the deceased.

Petition for letters of Administration: A representative of the deceased family will make a formal request to the court to be named as administrator of the estate (intestate). According to the Law of Succession Act in Kenya, a person is entitled to apply for letters of administration if they are related to the deceased by marriage or blood relationship. These include spouses, children, grandchildren, great grandchildren, parents, and any other relatives. If there are no relatives, or the relatives cannot agree on the administrator, then a public trustee is appointed.

This application is usually accompanied with a petition for grant of letters of administration and an affidavit in support of the petition. This confirms the facts of the case as well as the contents of the chief’s letter. The person making the application is required to appear in person and provide witnesses to the facts stated in the petition.

Guarantee by personal sureties: This is a form filled by people who know the applicant, the deceased, the deceased’s estate, and the heirs well. The guarantee is to ensure that the applicant fulfils their mandate as promised in the petition. The guarantors may be required to swear an affidavit to support the petition before a judge.

Notice in the Kenya Gazette: The court is required to gazette the petition for grant of letters of administration thereby inviting people with interest in the deceased person’s estate to raise any objections within 30 days from the date of publishing. If an objection is raised, the court will conduct a full hearing of the matters, but should there be no objection within 30 days, the petitioner(s) may obtain from the court the Grant of Letters of Administration, which essentially sets out the intended administrator of the estate and beneficiaries and their assignments within the estate.

Confirmation of Grant: After the lapse of six months from the issuance of the Grant of Letters of Administration, the administrator is required to apply for a confirmation of grant.[2] This is issued after the court is satisfied that it has all the facts around the assets of the deceased as well as all the beneficiaries of the estate. A sworn affidavit by the petitioner/administrator requesting for confirmation of grant and indicating how the estate should be distributed amongst the beneficiaries, is filed. It is important that the spouses and heirs have an agreement on how the estate will be shared before filing this affidavit. It should be noted that many disputes may arise at this level concerning fairness in sharing of the deceased’s estate. The confirmation of the grant entitles the applicant to distribute the deceased property amongst all beneficiaries.

Certificate of Confirmation of Grant: If both the Court and the parties agree as to how the property is to be distributed, a certificate of confirmation of grant demonstrating the said distribution is issued.   The grant is a court order and must be followed without making alterations.

However, the administrator may apply for a rectification of the grant when necessary. Once this is issued a form RL 19 is used to transfer the land from the deceased to the administrator of the estate. This officially gives them the power to distribute the deceased’s properties in accordance with the certificate of confirmation of grant.

Testate Succession

A will can be either oral or written, and a valid will must be executed, witnessed and signed by the deceased. Any good will names the executor of the estate who might be a spouse, child or relative, close friends, a bank or a public trustee nominated by the deceased. The only restriction is that an executor cannot be a beneficiary as that invalidates the will.

Where the court has determined that the will is valid, the executor named in the will may proceed to make a petition for a grant of probate to execute the will and administer the estate according to the wishes of the deceased. A grant of probate makes the will an enforceable court order giving the executor the authority to distribute the property and the estate according to wishes of the deceased in the will.[1] When making an application for a grant of probate the following documents are required; the will, the petition accompanied with supporting affidavits, original death certificate of the deceased and a consent form. Just as with the intestate succession, the application is gazetted for 30 days and is open for objections from the public. If there are no objections, the petitioner makes an application for confirmation of grant which should be done after 6 months.

Conclusion

It is important to note that it is only upon the issuance of the confirmation of grant that the beneficiaries may deal with the property of the deceased (for example, subdivide any land). It is at that point that a title may be transferred to the beneficiaries who are then free to dispose of the land as they deem fit.

It is noteworthy that dealing with property belonging to a deceased person without a court order is referred to as intermeddling which is a criminal offence punishable by imprisonment. Therefore, it is only prudent to adhere to the law and follow due process on administration of estates.

Our firm can assist you in such a process of preparing a will or administering an estate. Give us a call.