A last Will and Testament or simply a Will is a legal document that lets a person (the Testator) decide what should happen to their estate after they die.
What is the meaning of a Will?
A last Will and Testament or simply a Will is a legal document that lets a person (the Testator) decide what should happen to their estate after they die.
Who is an Executor or Executrix for purposes of a Will?
An executor is a personal representative of the deceased person. He is able to lawfully do such things as the deceased himself would have done if he was alive. According to the Kenyan laws, executors are personal representatives appointed under a will to distribute the property of a dead person according to their wishes. It means the testator chose the executor to oversee their estate and carry out their final wishes.
The appointment of executors is not a mandatory requirement but normally a will would be considered incomplete or poorly written if it fails to appoint executor(s).
What is a probate process?
An estate must go through a probate process which is a court supervised legal process of managing the assets/ estate by the executor. This involves taking an inventory of the deceased’s assets, paying their outstanding debts, and distributing their assets according to their wishes.
What is a Grant of Probate?
A grant of probate as described in the Law of Succession Act (Cap 160) is made where it is proved that a deceased person left a valid will: A court will grant a probate of the will to one or more executors in respect to all properties indicated in the will.
Where should one apply for a Grant of Probate?
The Succession Act provides that both High Court and Magistrates Court have jurisdiction to hear succession matters. The Magistrates court is however limited to hearing matters where the value of the deceased property is less than 20 million shillings.
Unqualified Persons for a Grant of Probate
A grant of representation cannot be made to the following category of persons:
- A minor
- Persons of unsound mind
- Bankrupt
- More than four people in respect to the same property.
What should the application of a grant entail?
The laws provide that every application to a grant shall be signed by the applicant and witnessed. The grant will include the following details:
- The full name of the deceased.
- Date and place of birth.
- The last known place of residence.
- The relationship (if any) of the applicant to the deceased.
- The present addresses of any executors appointed in the valid will.
- A full inventory of all the assets and liabilities of the deceased.
- In case of partial intestacy, the names and addresses of all surviving spouses, children parents, siblings and grandchildren of the deceased (whose parents were already deceased).
- If it’s an oral will, the names and addresses of all alleged witnesses shall be stated in the application.
Steps for applying for a Grant of Probate
- File Documentation: File all relevant documentation at the Magistrate court or High court registry for approval and assessment of fees.
- Payment: An invoice for payment is issued by the registry. Payment is made for both court fees and gazettement fees.
- Gazettement: A notice is published in the Kenya Gazette for 30 days to allow any objection to the application for Grant of Probate.
- Issuance: If there is no objection from anybody after 30 days, the court will issue the Grant of Probate.
Need representation in your court process? CONTACT our succession lawyer via Email: legal@ombogo.co.ke or Call: +254 771 775520 / +254 703 741276.
