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Ask the Expert : Writing a Will to Secure your Assets
Q: If I die before writing a will, what will happen to my assets and my family’s inheritance?
Nairobi Counsel Wanjiru Muthundo responds:
If one dies without writing a will (intestate), their assets will be distributed to their family by the rules of intestacy governed by the succession laws of Kenya.
The general principles of inheritance in Kenya are:
- Succession to immovable property (land) located in Kenya is regulated by the laws of Kenya, whatever the location or domicile of the owner at the time of death i.e. the laws of Kenya will apply to transfer of land whether you live in Kenya or not.
- Succession to moveable assets is regulated by the law of the country of the domicile of the owner at the time of death i.e. everything other than land will be governed by the laws of the country you are domiciled in.
It is difficult to advise without the specific facts but generally your assets will be distributed by the courts to your husband, if no spouse to your children, if no children to your parents and so on based on the law. The Law empowers the immediate and extended family members of a deceased person to inherit his/her estate and clearly specifies the circumstances under which each category of relatives may benefit from the deceased’s estate.
It is important that you inform the person who you appoint as an Executor of your estate of what assets you own and exactly where they are held. Your family will not automatically receive them if nobody knows where they are! An Executor can be a family member or an independent person.
Numerous other factors must be taken into consideration such as presence of step children. What happens if the surviving spouse remarries, and tax implications, to name a few?
Other options are available such as creation of trusts, passing of property during one’s life-time etc.
Please do not hesitate to contact Wanjiru Muthondo for assistance in matters relating to wills and will drafting.
Editor’s Note: A Prominent Senior Counsel in Kenyan Law advised the following:
- Whether you are 18 or 80, own immovable property or not; are single, married or childless – WRITE A WILL!
- Be careful of the people you support. (e.g House help’s child, distant relative, even a stranger’s child.)They have a right to challenge your will on grounds of dependency. Give them gifts rather than maintenance money.
- Update your records every five years. (Pension funds, insurance, saccos, chamas.) Not only your dependants but details like subsequent marriage.
- Ensure your name is on all your documentation for all your assets, especially women. (Title deeds, chama deeds, certificates, insurance policies etc.)
- Consult a lawyer and WRITE A WILL!