At a Glance
Many people assume that if they die without a Will, their spouse will automatically inherit everything or that their children will simply divide the estate equally. Unfortunately, this is one of the most common misconceptions about succession law in Kenya.
Where a person dies without leaving a valid Will, they are said to have died intestate. In such cases, the distribution of their estate is governed by the Law of Succession Act (Cap. 160), rather than by the deceased’s personal wishes.
This means that your estate may ultimately be distributed in a manner that differs significantly from what you intended.
What Does it Mean to Die Intestate
When a person dies without leaving a valid estate plan, a family member or other eligible person must first apply to the High Court for Letters of Administration. Once appointed, the administrators are responsible for collecting the deceased’s assets, settling outstanding debts, and distributing the estate in accordance with the Law of Succession Act.
Unlike a Will, which reflects an individual’s personal wishes, the intestacy provisions apply a standard legal framework. While this framework is intended to ensure fairness, it cannot take into account the unique circumstances of every family.
For example, the law cannot know whether one child has special needs, whether another has already received substantial gifts during the deceased’s lifetime, or whether the deceased wished to leave part of their estate to a close friend or charity.
The following are some of the most common intestacy scenarios, and the Law of Succession Act provides how the estate is to be distributed in each scenario.
Scenario 1: You Die Leaving a Spouse and Children
Where a deceased person is survived by a spouse and one or more children, the surviving spouse is entitled to the deceased’s personal and household effects absolutely and is also entitled to a life interest in the residue of the net intestate estate. The children are the ultimate beneficiaries of that estate, subject to the spouse’s life interest.
Although the law seeks to protect both the surviving spouse and the children, this arrangement may not reflect what the deceased would have wanted. For example, the deceased may have wished for the spouse to inherit the estate absolutely, or for certain assets to pass directly to particular children.
Scenario 2: You Die Leaving a Spouse but No Children
Where a deceased person leaves a surviving spouse but no children, the surviving spouse is entitled to the deceased’s personal and household effects absolutely, together with the first KES 10,000 of the residue of the estate or 20% thereof, whichever is greater, and a life interest in the remainder of the net intestate estate.
Upon the termination of the life interest, the estate devolves to the remaining family members.
Scenario 3: You Die Leaving Children but No Spouse
Where the deceased leaves children but no surviving spouse, the net intestate estate devolves upon the surviving child if there is only one, or is shared equally among the surviving children if there is more than one. The law therefore treats all children equally for purposes of inheritance.
Where the beneficiaries are minors, however, the administrators of the estate must continue managing the assets on their behalf until they are legally entitled to receive them.
Scenario 4: You Die Without a Spouse or Children
If a person dies leaving neither a spouse nor children, the law sets out the order in which other relatives inherit. The estate passes in the following order of priority:
- The deceased’s father;
- If the father is deceased, the deceased’s mother;
- If both parents are deceased, the deceased’s brothers and sisters, and the children of any deceased brother or sister;
- Thereafter, half-brothers and half-sisters, and the children of any deceased half-brother or half-sister; and
- Thereafter, the relatives who are nearest in degree of consanguinity up to and including the sixth degree.
This statutory order can produce unexpected outcomes. For instance, a long-term partner, close friend, or charity that was important to the deceased will not inherit simply because of that relationship.
Scenario 5: You Die Polygamous
Where a person dies intestate having married more than once under a system of law that permits polygamy, the estate is first divided among the different households (or “houses”).
The share allocated to each house is determined by the number of children in that house, with each surviving wife being counted as an additional unit.
Once each house’s share has been determined, it is then distributed among the members of that house in accordance with the general rules of intestate succession under the Law of Succession Act.
Conclusion
A carefully curated estate plan allows you, not the law, to decide how your estate should be distributed. It provides certainty, reduces the risk of disputes, and helps protect the people and causes that matter most to you.
At Sterling Law, we advise individuals and families on tailored estate planning solutions, including Wills, Family Trusts, and succession planning strategies designed to provide certainty for future generations.
