Have you ever wondered what happens to a person’s property when they die without
leaving a will? This situation is known as intestate succession. In Kenya, the process of
distributing such a person’s property is guided by the Law of Succession Act (Cap 160)
and the Probate and Administration Rules.
There are two main types of succession:
- Testate succession – when a person dies after writing a valid will.
- Intestate succession – when a person dies without a will when their will is
declared invalid, or when they revoke their will and don’t make another one before
passing away.
In this article, we’ll explain how intestate succession works in Kenya and who inherits the
deceased person’s property in different situations.
What Happens When a Person Dies Without a Will?
- When the Deceased Leaves a Spouse and Children
If a person who was legally married in a monogamous marriage dies and leaves behind a
spouse and children, the law states that:
● The surviving spouse gets all the personal and household belongings (e.g.,
furniture, clothes, and jewelry).
● The spouse also gets a life interest in the rest of the estate, meaning they can use
the property but cannot sell it.
● When the surviving spouse passes away, the remaining property goes to the
children, who share it equally.
● However, if the surviving spouse remarries, their life interest in the estate ends, and
the property is immediately transferred to the children.
2.When the Deceased Leaves a Spouse But No Children
If the deceased was married but had no children:
● The surviving spouse gets all personal and household belongings.
● The spouse also receives Ksh 10,000 or 20% of the remaining estate (whichever
is greater).
● The spouse has a life interest in the rest of the estate but cannot sell the property.
● If the spouse remarries, the life interest ends, and the property is given to the
deceased’s relatives (siblings, parents, or more distant relatives).
3. When the Deceased Leaves Children But No Spouse
If the deceased had children but no surviving spouse:
● The entire estate is divided equally among the children.
● If the children are still minors, the property is managed on their behalf until they
reach adulthood.
4. When the Deceased Had No Spouse or Children
If a person dies without a spouse or children, their property is inherited by their closest
living relatives in the following order:
- Parents (if alive).
- Siblings (brothers and sisters).
- Other close relatives, such as cousins, uncles, or aunts.
If no close relatives are found up to the sixth degree of consanguinity the government takes
over the estate.
What Happens in Polygamous Marriages?
If a person was in a polygamous marriage (a marriage where one man had multiple
wives), the estate is divided differently:
● The property is shared among the different “houses” (each wife and her children
form a house).
● Each house gets a share of the property based on the number of children in that
house.
● Each wife is counted as one unit, and each child is also counted as one unit when
calculating the inheritance.
● Once the estate is divided, each surviving wife has a life interest in her portion,
meaning she can use it but not sell it.
Final Thoughts
Understanding intestate succession is important because it helps families prepare for the
future. Without a will, the law determines how property is distributed, which might not
always align with the wishes of the deceased. The best way to avoid conflicts is to write a
valid will, ensuring that your assets are distributed according to your preferences.
How We Can Help
At Prof. Tom Ojienda & Associates, we are committed to providing expert legal insights and
guidance across various practice areas. Whether you are an individual seeking legal redress
or an organization navigating complex regulatory frameworks, our experienced team is
here to support you. Our articles and insights are for informational purposes only and do
not constitute legal advice. For tailored legal solutions, please contact our team of
professionals at www.proftomojiendaandassociates.com to Stay Ahead of the Game.
