Succession is the process by which properties of a deceased person are dealt with and transmitted to their heirs. The Kenya law of succession prescribes the rules which determine what ought to happen to a person’s estate after their death. The general legal principles of inheritance that come out for the purpose of this write up are:

• Succession to immovable property located in Kenya is regulated by the laws of Kenya, whatever the location or domicile of the owner at the time of death. The applicable law is still Kenyan for spouses with different nationalities and/or religions, and the court in the locality where the immovable property is situated has jurisdiction to hear and determine proceedings regarding property rights except where the parties who own property are of the Islamic faith, which then means that Islamic law applies.
• Succession to moveable assets is regulated by the law of the country of the domicile of the owner at the time of death. Moveable assets such as bank accounts are distributed in accordance with the inheritance laws of the country of ‘domicile’ of the deceased person at the time of his death. Domicile of a person refers to the country that a person treats as their permanent home and has a substantial connection with and is normally the place of birth for most.
• However, ‘domicile’ and ‘residence’ are different legal concepts. A person’s ‘domicile’ may be separate from that person’s ‘residence’. For instance, the holder of a bank account may be domiciled in Kenya but resident in the US. If such a person holds a US bank account and has made a US will, it is still necessary to consider the law of their domicile i.e., Kenyan law. If Kenyan law gives them the freedom to dispose their assets freely then the bequests in the US will in relation to the disposal of the proceeds of the account be recognised and given effect to by the US courts.
• From the above it is clear that as long as fixed/immovable assets of a Kenyan citizen are in Kenya, Kenyan laws shall apply. Where moveable assets are concerned, the law of domicile applies.
• There are two (2) ways in which succession happens; when there is a will left by the deceased or where non is left (testate and intestate succession respectively).
• It is highly advisable for Kenyans who live abroad and have assets in Kenya to make a will because its relatively simple to make one and the availability of one makes it is easier for the Courts to deal with the disposal of the assets among the beneficiaries who may or may not live in Kenya.
• Further, one does not have to be in Kenya to make a will and one does not need to have a lawyer to write it provided one is in a good state of mind to understand the nature of their actions otherwise its validity may be challenged in court. However, having a lawyer draft one is highly recommended as it ensures that all legal requirements of a valid will are met.
• Where no will exists, beneficiaries must follow long and complicated procedures in court before the assets can be distributed among them. This becomes worse where the intestacy succession is contested by someone. Further, as intestacy rules are fixed, the deceased may inadvertently benefit a person they did not intend to such as an estranged child or sibling or even bequeath a larger share of their assets to certain beneficiaries. A will has the advantage of allowing a person to benefit those individuals who they desire to benefit.
• Should you have any queries or need any clarifications with respect to this article and/or estate planning please do not hesitate to contact QEXLE Legal Chambers.