3 min read473 words
Author: Gallant Law & Associates · Published: January 2025 · Jurisdiction: Kenya
Legal context: Law of Succession Act (Cap. 160), including sections 35 and 38
When a person dies without leaving a valid will, their family may assume that the property will simply be divided among the children. In reality, succession can be more complicated.
A person who dies without a valid will is generally described as having died intestate. The distribution of the estate is then governed by the intestacy provisions of Kenya's Law of Succession Act.
Where a deceased person leaves a surviving spouse and children, the law provides specific rights for the surviving spouse and children. For example, under Section 35, a surviving spouse may be entitled to the deceased's personal and household effects and a life interest in the residue of the net intestate estate, subject to the circumstances of the estate.
Where there is no surviving spouse but there are children, Section 38 generally provides for the estate to be divided equally among the surviving children, subject to provisions that may apply to particular circumstances.
This does not, however, mean that family members can simply identify the property and divide it among themselves.
Before estate property can ordinarily be distributed, there is an administration process. A person or persons must obtain the appropriate grant of representation, identify and preserve the deceased's assets, deal with liabilities and then seek confirmation of the grant before distribution.
For example, a family may know that a particular parcel of land belonged to their late parent. That does not automatically mean that an individual child can transfer the land into their own name or sell it. The estate first has to be properly administered.
The situation can become even more complicated where there are children from different relationships, more than one spouse, dependants who were not children of the deceased, property whose ownership is disputed, or assets that the deceased had intended to give to particular family members during their lifetime.
Another common misconception is that being the eldest son automatically gives someone greater inheritance rights. Under the Law of Succession Act, children are generally treated equally in intestate succession, irrespective of gender or marital status.
The safest approach is therefore not to begin by asking, “Who gets the land?” Begin by asking, what assets did the deceased leave, who are the legally recognised beneficiaries, what liabilities exist, and what is the correct succession process?
Where possible, succession planning should happen before death. A properly prepared will can reduce uncertainty, clarify intentions and help families avoid disputes over property after a loved one dies.
If someone has already died without a will, obtaining legal advice early can help the family understand its rights and responsibilities before disagreements become difficult and expensive disputes.
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This article is general legal information, not legal advice, and does not create a lawyer–client relationship.