What is Probate and Why Do You Need It?

When someone passes away in Kenya, their property cannot simply be divided amongst family members. The law requires proper court authorisation before anyone can handle a deceased person’s assets. This legal process is called probate, and it protects everyone involved whilst ensuring orderly estate administration.

The Law of Succession Act is crystal clear on this matter. Section 45 prohibits anyone from taking possession, disposing of, or interfering with a deceased person’s property without proper authorisation. This authorisation comes through a Grant of Representation from the court.

The Criminal Side: Why Following the Rules Matters

Ignoring probate requirements carries serious consequences. Unauthorised intermeddling with a deceased person’s property is a criminal offence in Kenya. Those convicted face up to one year in prison, a fine of up to Kes 10,000, or both penalties.

This means even well-meaning family members who try to “help” by managing the deceased’s assets without court approval risk criminal prosecution. The law makes no exceptions for good intentions or family relationships.

Getting Your Grant of Representation

The Grant of Representation is your legal ticket to manage the deceased’s estate. Think of it as the court’s official permission slip that allows you to handle bank accounts, sell property, pay debts, and distribute assets to beneficiaries.

To obtain this grant, you must file specific petitions and court forms detailing the deceased’s assets, debts, and potential beneficiaries. The court carefully reviews these documents before deciding whether to issue the grant. The process typically takes several months, depending on the estate’s complexity and whether any disputes arise.

Different situations require different types of grants. If the deceased left a valid will with an appointed executor, the court issues Probate. When there’s a will but no executor, or the executor cannot serve, the court grants Letters of Administration with Will Annexed. For cases where someone died without a will (intestate), the court issues Letters of Administration.

Special Rules for Muslim Families

Kenya recognises the religious diversity of its citizens through specialised court systems. Muslim families have two options for handling probate matters, each with distinct advantages.

Kadhis’ Courts hold primary jurisdiction over Muslim inheritance cases. These courts apply Islamic law principles throughout the entire probate process, ensuring that estate administration aligns with Sharia requirements. From identifying legal heirs to calculating inheritance shares, Kadhis’ courts provide culturally appropriate legal services for Muslim families.

High Court Alternative remains available for Muslim families who favour this route. The High Court can handle any dispute involving a deceased Muslim, but Islamic law still governs the substantive legal determinations. This option might suit families dealing with complex commercial interests, significant assets, or beneficiaries in different jurisdictions.

Practical Steps for Families

Successfully navigating probate requires careful preparation and documentation. Families should gather comprehensive records of the deceased’s assets, including property deeds, bank statements, investment accounts, and business interests. Debt documentation is equally important, as the court needs to understand all financial obligations before authorising asset distribution.

Family relationship documents play a crucial role in establishing beneficiary rights. Birth certificates, marriage certificates, and other vital records help the court identify legitimate heirs and their respective inheritance shares.

Professional Help Makes a Difference

Whilst families can handle simple probate matters independently, professional assistance often proves invaluable. Experienced probate solicitors understand the system’s complexities and can guide families through potential complications. They’re particularly helpful when disputes arise amongst beneficiaries or when estates involve complex assets requiring specialised knowledge.

Moving Forward

The probate process protects everyone involved in estate administration whilst ensuring compliance with Kenyan law. By following proper procedures and obtaining necessary court authorisation, families can honour their deceased loved ones whilst avoiding legal complications. Whether choosing traditional High Court proceedings or specialised Kadhis’ court jurisdiction for Muslim families, the key is understanding the requirements and taking appropriate action to secure proper legal authority before handling any estate matters.

If you have any questions about this article, please reach out to Divinah Ongaki at dso@smc-legal.com or info@smc-legal.com