When a deceased person leaves behind a valid will, the process of administering their estate is called testate succession. In Kenya, the grant of probate is the legal authority conferred on the executor to manage, safeguard, and distribute the estate according to the will. This process—governed by the Law of Succession Act—requires strict adherence to procedural steps overseen by the courts to ensure assets are distributed in accordance with the deceased’s wishes.
Identifying the Executor
The grant of probate begins by identifying the executor named in the will. If the named executor(s) is unable or unwilling to act—due to death, incapacity, or other special circumstances—an eligible substitute or trustee may apply, provided sufficient justification is shown to the court.
Document Preparation
The executor or applicant must gather and prepare key documents required for the application:
- The original will and certified copies.
- The original death certificate of the deceased.
- A comprehensive inventory of the deceased’s assets and liabilities, including property, bank accounts, shares, and debts.
- Proof of property ownership for assets such as land or vehicles. Identification documents for the executor and all beneficiaries.
Filing the Petition
The next stage is filing a petition for grant of probate at the High Court. The petition must include substantial details about the deceased, the executor(s), and beneficiaries, supported by an affidavit attesting to the legitimacy of the will and the status of the estate. The court assesses filing fees and, upon payment, registers the case for further action.
Public Notice and Objection Window
Upon receipt of the petition, the court orders notice of the probate application to be published in the Kenya Gazette. This public announcement serves several purposes:
Notifying the community of the intended grant.
Inviting objections and allowing any interested party to contest the application within 30 days. Providing a fair opportunity for omitted beneficiaries or other claimants to come forward. During this objection period, parties may file statements challenging the validity of the will, the fitness of the executor, or claims to the estate. If objections arise, the matter proceeds to a court hearing, where evidence is presented by both the objectors and the applicant. The court then makes a reasoned determination.
Granting and Confirming Probate
If no objection is raised within 30 days—or after resolution of any disputes—the court proceeds to issue the grant of probate to the executor, authorizing asset collection and debt settlement. However, the executor cannot distribute or sell principal assets until the confirmation of grant is obtained.
After at least six months, the executor must file a summons for confirmation of grant. This application details all beneficiaries, assets, and liabilities, and sets forth a proposed schedule for asset distribution. The court reviews the application and, upon satisfaction, issues a Certificate of Confirmation of Grant, formally empowering the executor to distribute the estate in accordance with the will.
Administration of the Estate
With the confirmation certificate in hand, the executor undertakes final administration: collecting assets, settling outstanding debts and taxes, and distributing the estate as defined in the will. The executor must also provide the court with a report detailing how the estate was managed and submit a final inventory of all transactions.
Conclusion
The process of obtaining grant of probate in Kenya is designed to balance legal rigor with the deceased’s wishes, protecting beneficiaries and creditors alike. Executors must comply with statutory requirements and uphold transparency throughout, from public notification to final distribution. For guidance in probate matters, consult a qualified advocate to ensure compliance and protection of the estate.
