Testate and Intestate Succession in Kenya

Succession is the process or action of inheriting a title or property carried out by a deceased’s beneficiary/ies. This somewhat lengthy process is necessary and compulsory for anyone planning to undertake any transaction with property of any nature bestowed upon them.

Our behind-the-scenes at Pro-Property Solutions Ltd exposes us to sellers who may need a little help jumping through the legal hoops of succession, which we do diligently with the help of our able legal partners.

Testate Succession

This is when the deceased leaves a valid will stipulating how their estate will be subdivided. Since the details of the subdivision are clear, the will’s executioner will obtain Grant of Probate, allowing them to proceed with mutation.

Once the High Court approves the petition (where the property’s value is over Kes. 20M, otherwise the matter will be filed at the Magistrate’s Court), the administrator will file a gazette notice making known their intention to go through succession, and this gazettement stays active for 30 days. This is to notify anyone with an objection to the succession process to raise their voice: ideally, speak now or forever hold your peace. The gazette notice contains all the information about the particular property, from the parcel number to the name and all vital details of a valid deed.

If objections are raised during this period, the succession process is halted to give the dissentients time to present their case.  If not, it moves to the Lands Registry.

Intestate Succession

If the deceased left no valid will behind, or it is unvalidated, the local County Commissioner (formerly Chief) will write a letter addressed to the court, identifying and verifying the deceased’s survivors. A petitioner chosen by the beneficiaries or the authorities, if they cannot agree, files a petition to be made the estate’s administrator. A gazette notice of this letter of administration is made for 30 days, and if they lapse without objection, the petitioner becomes the official administrator of the estate.

Note: You are allowed up to four admins for fair representation.

Once the beneficiaries have the administrator in place, they will have the next six months to agree on the distribution mode. A surveyor will be on-site to survey the property and then prepare a proposed mutation showing what each beneficiary gets. This process should be crisp, as any later modification will require another court process. After six months, the beneficiaries and administrator/s appear in court to show they consent to the letter of mutation. While here, the admin is issued with the Confirmation of the Grant of Letters of Administration. The deceased’s estate can now be transferred.

Land Transfer

The admin files the Confirmation of Grant with Form RL39 to change the property’s title to their name in a process called Transmission. During this process, the land is transferred as per the mutation agreed upon earlier. The admin then files Form RL42 to transfer the property to its new owners – the beneficiaries. At this point, the completion documents are presented to the Commissioner of Lands, and they include:

• Form RL42
• The new land number as per the mutation.
• Confirmation of Grant
• Kenya gazette notice

When the commissioner is satisfied that all these documents are as they should be, they’ll issue new title deeds in the names of the beneficiaries, who are now at liberty to do with their bequest as they wish.

Conclusion

Not too complicated, is it? The Succession Act protects the rights of those involved in the process, so do not hesitate to consult an advocate to get this process started – if you need it. Pro-Property Solutions Ltd will walk this process with you when you want to transfer that prime idle land, so get in touch today.