Kenya law of succession: Administration of estates

Administration of estates under Kenya law refers to the process which starts with the death of the deceased and the distribution of the estate. It includes collection, realization and management of the estate. This means the personal representative has a duty to:

•     collect the assets and preserve them;    pay the deceased’s debts and liabilities as well as the administration expenses
•     distribution of the estate among the heirs of the deceased

The powers of the personal representative are set out in S 82 of the Kenya Law of succession Act(LSA) as read together with the provisions of the Trustee Act and the Trust for Lands Act. Because the Kenya Law of succession Act provisions are not comprehensive in certain matters relating to the administration of estates. It is deliberate because this Act was passed after these two Acts thus no need to reproduce their provisions into the LSA. The powers include:

•    Power to enforce all causes of action that survive the deceased or arise out of his death e.g. sue the debtors, trespassers, right that has accrued to the deceased (adverse possession)
•     Power to sell assets. It is necessary to facilitate payment of debts and liabilities and distribution of the estate. The powers to mortgage and lease property is not provided for under S 82 but is found in the Trustee Act and Trust for Lands Act
•     Power to appropriate (after confirmation of grant) of any of the assets vested in them. Appropriation occurs where a particular asset given to a particular beneficiary has to be utilized for other purposes instead of being vested in the particular beneficiary. However, consent is necessary from the particular beneficiary before appropriation.

Under Kenya laws,certain classes or property do not vest in personal representatives. S 79 of LSA states that property should vest in personal representatives. These classes include property held by a deceased as a joint tenant, nominated funds either in a pension scheme or investment in cooperative societies (paid directly to nominees without going through the personal representatives), gifts in contemplation of death (pass directly to donee), insurance policies written in trust or falling within S 11 of the MWPA (proceeds do not vest in personal representatives but are paid directly to the beneficiary).

Payment of debts, funeral, testamentary and administrative expenses and pecuniary legacies take priority over the distribution of the estate. If the payment consumes the entire estate then there will be no distribution. Thus distribution should only come after settlement of debts and in Kenya distribution comes after confirmation of the grant.

Beneficiaries usually are in a very difficult position as they have little say in the administration of the estate largely because the property vests in the personal representative thus the best they can do is to go to court when they feel the estate is being wasted under Order 37