One father leaves a careful will naming an executor; another leaves nothing in writing. Both estates need a court grant before anything can be transferred, but the two families will follow different documents. Knowing which grant applies, and what each one authorises, saves months of confusion. This article compares probate and letters of administration in Kenya and explains the steps that follow.
Quick answer
Probate is the grant made where the deceased left a valid will; it confirms the will and empowers the executor named in it. Letters of administration are the grant made where there is no will, or where the will named no capable executor. Both are issued under the Law of Succession Act, both are confirmed before distribution, and both are needed before banks and registries will deal with substantial assets.
What probate is
Probate is the court’s confirmation of a valid will and of the executor’s authority to act. The executor collects the assets, pays the debts and expenses, and distributes the estate according to the will. The executor’s authority dates from the grant rather than from the will itself, which is why institutions ask for the sealed document rather than a copy of the will.
The court reviews the will and the evidence of its execution before issuing the grant. If the will is unclear, or if someone challenges it, the probate process can become contentious and the court will decide the issue before the estate is administered.
What letters of administration are
Letters of administration are issued where there is no will, or where the will named no capable executor, or where the named executor cannot or will not act. The court appoints administrators, usually from among the beneficiaries or their nominees, and their duties mirror those of an executor, except that distribution follows the Act’s intestacy rules rather than the will.
Where a will exists but no executor can act, the grant is made with the will annexed, so that the will still governs distribution. Because administrators act under the court’s supervision, they may need to account to the court or seek directions where the estate is complicated.
When a grant is needed
In practice, a grant of representation is needed for anything substantial. Banks, land registries and share registrars require it before releasing or transferring significant assets, and any dealing in land requires a grant confirmed by the court. Some institutions release modest balances against a death certificate alone, but the threshold varies by institution and should not be assumed.
Where the estate is small and simple, families sometimes delay the application. That delay can create problems later, particularly where land is involved, because the register cannot be changed without the confirmed grant.
Which route applies
| Situation | Grant | Distribution |
|---|---|---|
| A valid will with a capable executor | Probate | According to the will |
| A valid will with no capable executor | Letters of administration with the will annexed | According to the will |
| No will | Letters of administration | Under the intestacy rules in the Act |
Applying for the grant
The application begins with a petition supported by affidavits and documents: the death certificate, the will where there is one, proof of relationship, an inventory of the estate and the consents of the beneficiaries who rank ahead of the applicant. Notice of the petition is published, and objections may be raised before the grant issues.
The petition should be accurate and complete. An estate that is under-described may require a further application, and a petitioner who is not entitled in priority may have the application challenged. The related article on letters of administration in Kenya describes the documents and the process for the intestate route.
Using the grant: collection, payment and distribution
Once the grant is issued, the personal representative collects the estate, settles legitimate debts, expenses and taxes, and keeps a clear record of receipts and payments. A simple estate account, showing money received, money paid out and the balance held, is useful for the court, for the beneficiaries and for the estate’s own records. The grant must then be confirmed before distribution, and the confirmed grant approves the schedule of distribution.
Distribution follows the will or the Act. Transferring land involves the lands registry, clearances and any required consents, while bank accounts, shares and other assets have their own release procedures. Where a beneficiary is a minor, the estate may need a trust or a guardian to hold the share until the beneficiary comes of age.
Special cases
Several situations need particular attention: a will that no one can locate, a challenge to the will’s validity, an executor who has died or is unwilling to act, beneficiaries who cannot be found, assets held outside Kenya and land held in a different county. Where the estate includes a business, the personal representative should consider how the business will be run during the administration.
The related article on valid will requirements in Kenya explains the formalities that determine whether probate will follow a will or letters of administration will be needed. The firm’s real estate and conveyancing practice handles the transfer of estate property, and the governance and advisory practice advises on estate planning.
When to take advice
Advice is worth taking before the petition is filed, where the will is unclear or challenged, where the family disagrees about who should act, where the estate includes land, a business or foreign assets, or where a beneficiary needs protection. Early advice usually reduces the risk of an objection and the delay it causes.
Primary sources
- Law of Succession Act (Cap 160), Kenya Law, for probate, letters of administration and estate administration.
- Judiciary of Kenya, for the Family Division and probate and administration procedure.
- Kenya Law, for the Act and the rules referred to in this article.
This article is general information, not legal advice.
