When a person dies without a will, Kenyan law decides who inherits. The family’s assumptions are not always correct, particularly where there are children from more than one relationship, a surviving spouse, or dependants who were being supported by the deceased. This article explains how intestate succession works under the Law of Succession Act, who takes what, and how the estate is administered.
Quick answer
Intestate succession is the distribution of an estate where the deceased left no valid will. The Law of Succession Act sets out who inherits and in what shares, with the surviving spouse and children usually taking first. The estate is administered by administrators appointed by the court, and the assets are distributed only after the grant is confirmed. Dependants who are not heirs may apply to the court for provision.
What intestacy means
A person dies intestate when there is no valid will, or when a will is invalid or does not dispose of the whole estate. The estate then passes under the statutory scheme rather than under the deceased’s wishes. The scheme identifies the heirs, sets their shares and determines the priority of those entitled to administer the estate.
Intestacy is not a single rule. The result depends on which relatives survive the deceased: a spouse, children, parents, siblings or more distant kin. The Act sets out a descending order, and the presence or absence of a spouse and children changes the outcome substantially.
The distribution scheme: spouse and children
Where the deceased is survived by a spouse and children, the surviving spouse takes the personal and household effects and a life interest in the net intestate estate, and the children share the remainder in the shares the Act prescribes. The estate must first meet the debts, funeral expenses and the costs of administration before the net estate is calculated.
The distinction between the spouse’s interest and the children’s shares matters. The spouse’s interest is protective during their lifetime, while the children’s shares are the reversionary interest in the estate. Where the family does not understand the difference, disputes about the family home often follow.
The life interest explained
A life interest is a right to use or receive the benefit of the estate during the holder’s lifetime, without becoming the outright owner. It protects the surviving spouse’s home and income for life and comes to an end in the circumstances the Act allows. The spouse does not have to sell the family home, but the spouse also cannot deal with the property as though it belonged to them absolutely.
Where the estate includes a business or a farm, the life interest arrangement should be worked out carefully so that the operation can continue and the children’s reversionary interest is protected. A written family arrangement, approved through the administration process, can reduce later conflict.
Where there is no spouse or children
The Act then descends a ladder of relatives. Parents, then siblings, then more distant kin may become entitled, with prescribed shares where several survive in the same degree. The petitioner must prove the relationships, which is why birth certificates, marriage certificates, chiefs’ letters and other records matter when the estate is small and the family history is complex.
Where no relative within the statutory list survives, the estate may pass to the state under the Act. That outcome is rare but it is the reason a person with no close family should consider making a will rather than leaving the distribution to the statutory scheme.
Polygamous and blended families
Polygamous families raise specific questions about how houses and shares are allocated, and the Act provides a framework for distributing the estate among the houses. Blended families raise questions about which children fall within the scheme and how stepchildren are treated. These are fact-sensitive questions, and the answers depend on the evidence of marriage, dependency and parentage.
Families in this position should collect the records early: marriage certificates, birth certificates, school records, evidence of dependency and any written family agreements. That evidence is needed before the petition, not after a dispute has started.
Dependants and applications for provision
A dependant who was being maintained by the deceased may apply to the court for reasonable provision from the estate, even where the dependant is not among the heirs who inherit on intestacy. The application is made within the administration process, and it allows the court to make provision from the estate for a person the deceased was supporting.
Where the estate includes agricultural land, the transmission will also engage the Land Control Act and the consent requirements that apply to controlled transactions. The estate’s land should be identified and checked at the registry before distribution is proposed.
The grant and administration process
The estate is administered by administrators appointed by the court, usually through a petition supported by the family and the documents proving the relationships. After the petition and the publication of notice, the court may issue the grant, which authorises the administrators to collect and preserve the estate. The grant is then confirmed, and distribution follows the Act.
The related articles on letters of administration in Kenya and valid will requirements in Kenya explain the grant process and how a will can avoid the statutory scheme. The firm’s real estate and conveyancing practice handles the transfer of estate property.
When to take advice
Advice is worth taking where the family structure is complex, where there are children from more than one relationship, where dependants may claim provision, where the estate includes land or a business, or where the family disagrees about the heirs or the administrators. The firm’s governance and advisory practice advises families on estate planning and administration.
Primary sources
- Law of Succession Act (Cap 160), Kenya Law, for the intestacy scheme, shares and provision for dependants.
- Judiciary of Kenya, for probate and administration procedure.
- Kenya Law, for the Act and the related legislation referred to in this article.
This article is general information, not legal advice.
