Intestate succession occurs when a person dies without leaving a valid will (or with a will that fails to dispose of some or all of their estate). In Kenya, the Law of Succession Act sets out detailed rules for how an intestate estate is distributed — rules that may differ significantly from what the deceased would have chosen.
Who Inherits on Intestacy?
The order of priority under the Law of Succession Act is as follows:
Surviving spouse and children: The surviving spouse is entitled to the personal and household effects of the deceased absolutely, and to a life interest in the matrimonial home. The residue of the estate is divided equally among the surviving children.
Where there is no surviving spouse: The estate passes to the deceased's children equally.
Where there is no spouse or children: The estate passes to the deceased's parents, then siblings, then more distant relatives in a defined order.
The Life Interest Problem
A common complication in intestate estates is the surviving spouse's life interest in the matrimonial home. The spouse may live in the home for life but cannot sell or mortgage it without the court's approval. This can create practical difficulties for families who need to realise assets.
Customary Law and Muslim Law
Persons married under customary or Islamic law, and customary law estates generally, may be governed by different succession rules under the provisions of the Law of Succession Act that preserve customary law intestacy for certain categories of estate. This is a complex area and requires specific advice.
Why Write a Will?
Intestacy rules are inflexible and may not reflect the deceased's true wishes. A will allows the testator to: specify beneficiaries, make provision for dependants, appoint guardians for children, leave gifts to charities, and provide for friends or other non-family members who would receive nothing on intestacy.