A WILL OF A DECEASED PERSON: THE COURT PROCESS

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:

  1. A minor
  2. Persons of unsound mind
  3. Bankrupt
  4. 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:

  1. The full name of the deceased.
  2. Date and place of birth.
  3. The last known place of residence.
  4. The relationship (if any) of the applicant to the deceased.
  5. The present addresses of any executors appointed in the valid will.
  6. A full inventory of all the assets and liabilities of the deceased.
  7. 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)
  8. If it’s an oral will, the names and addresses of all alleged witnesses shall be
    stated in the application.
  9. Any other details that may be required.
    What are the steps for applying for a Grant of Probate?
  10. File all relevant documentation at the Magistrate court or High court registry for
    approval and assessment of fees.
  11. An invoice for payment is issued by the registry. Payment is made for both court
    fees and gazettement fees.
  12. A notice is published in the Kenya Gazette for 30 days to allow any objection to
    the application for Grant of Probate.
  13. 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/ Call: +254 771 775520 or +254
    703 741276 / Fill our website contact forms.
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