Administration of the Estate of The Deceased

We received a Question from one of our online clients; “Can I inherit my father if my National Identification Card does not display his name?’’ his actual words…

Section (29)(a) of the Law of Succession Act, Chapter 360 of the laws of Kenya defines a dependant as a wife, former wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death.

Sub-section (b) further adds the list to include the deceased’s parent’s, step-parent’s, grand-parents, children, step-children, children whom the deceased had taken into his family as his own, brother and sisters, half-brothers & sisters as were being maintained by the deceased prior to his death.

As per the above definition, being a child-of-the-Deceased you qualify as a dependant and as such, you are entitled to being a beneficiary of the estate of your father, whether the father’s name appears on the National Identity card or not.

The law entitles certain persons to administer the intestate of the deceased whereby he or she died intestate. The following persons are entitled by law to petition the Court for Letters of Administration;

• The spouse or spouses, that is with or without association of the beneficiary.
• Children
• Parents
• Siblings
• Step-siblings
• Blood relatives of the Deceased person up to the sixth degree of consanguinity
• The public trustee
• The creditors of the deceased person
• Other beneficiaries are entitled to intestacy with priority to their respective beneficial interests i.e. (right to receive benefits of assets).

If the deceased died intestate, the beneficiaries of the deceased should petition for Letters of Administration (authority granted by the Court to a person to administer the estate of the deceased and the person is referred to as the Deceased’s Personal Representative)

Once the entitled person has applied to the court for the grant of Letters of Administration, the Application is published in the Kenya Gazette inviting any person who wishes to object to the Application to lodge their objection in court within 30 days of publication. If no objection is raised within 30 days or if any objections raised have been resolved or dismissed the court grants the Letters of Administration to the Applicant.

The Personal Representative has the authority to deal with the property of the Deceased person   cannot distribute the estate to the Beneficiaries until the Letters of Administration are confirmed.

After Six months of Issuance of the Letters of Administration, the Personal Representative is required to make an Application for confirmation which essentially seeks the courts approval to the proposed distribution of the estate to the Beneficiaries. The Application must contain all the beneficiaries of the estate and must also disclose their share of the estate. The Court upon being satisfied with the proposed distribution confirms the grant of Letters of Administration by issuing a Certificate of Confirmation of Grant.

The Personal Representative then distributes the property among the beneficiaries in accordance with the mode of distribution and is required to do so within six months of confirmation of the grant of Letters of Administration or longer time as allowed by court. The court also requires the Personal Representative to produce a full and accurate inventory of the assets and liability of the Deceased as well as full accurate account of all dealings and the completed administration.

If the deceased left a valid will, either oral or written, the original will shall be annexed to the Petition in the Application for Grant of Probate made to court, with the particulars of the Deceased, full inventory of all assets and liabilities of the Deceased, full names and present address of the executors and a letter from the area Chief confirming the Beneficiaries entitled under the Deceased estate.

The Petition is advertised in the Kenya Gazette to invite any objection with 30 days and if no objection is raised within the 30 days period the Grant of Probate is issued. After six months after the Grant of Probate is issued, the Executor files an Application for Confirmation of Grant specifying the Beneficiaries of the Deceased, assets and liabilities of the Deceased. Upon hearing of the Application for Confirmation of Grant and the Judge being satisfied with the application and the contents of the will, the court will grant and issue a Certificate of Confirmation of Grant. Confirmation of the Grant gives authority to the Executor to distribute the Capital Assets of the Deceased to the Beneficiaries as per the Will.