Succesion: Estates of deceased foreigners in Kenya

published on 19 November 2020 | reading time approx. 3 minutes

Succession is the transmission of the rights and obligations of a deceased person to his/her heirs. The legislation governing succession makes provision for procedures that determine what ought to happen to a person's estate after his or her death. The rules of succession identify the beneficiaries entitled to succeed the deceased's estate, the extent of the benefits they are to receive and the procedures to be undertaken to enable the beneficiaries acquire such benefits.

In Kenya, succession is governed under the Law of Succession Act, Chapter 160 of the Laws of Kenya (the Act). The Act categorizes succession into testate succession (where there is a valid will) or intestate succession (where there is an invalid will or no will at all). The Act not only applies to Kenyans, but also foreigners with property in Kenya. Therefore, it is prudent for foreigners with properties in Kenya to consider the below factors:

What type of property do you own in Kenya?

The type of property a foreigner owns will determine the law that will apply during succession. Immovable property, for example, land and buildings, will be subject to the Kenya’s succession laws, in spite of the owner’s nationality or domicile.
On the other hand, movable property will be subject to the law of the owner’s domicile. Domicile refers to one’s permanent place of dwelling, that is, one’s permanent home.

Is the will in place valid?

If a foreigner who is domiciled in Kenya intends to leave behind a will, he/she should ensure that it complies with at least one of the following:

the succession law in force in the state where the will was executed; or
the succession law in force in the state where the property is situated; or
the succession law in force in the state where, at the time of its execution or the testator’s death, he/she was domiciled; or
the succession law in force in a state of which the person making the will was a national either at the time of its execution or on his/her death.

Otherwise, the will may be rendered null and void thereby resulting in the property being distributed per the intestacy laws under the Act.

What happens when a foreigner dies intestate while domiciled in Kenya?

If a foreigner dies intestate while domiciled in Kenya, his/her estate will be distributed as per the provisions of the Act. The Act provides the following ways in which property of the deceased is to be distributed:

Where the deceased has left one surviving spouse and a child or children, the surviving spouse shall be entitled to the personal and household effects of the deceased absolutely and a life interest in the whole residue of the net estate.
Where the deceased has left one surviving spouse but no child or children, the surviving spouse shall be entitled out of the net estate to the personal and household effects of the deceased absolutely, and the first KES 10,000.00 (approx. USD 100.00) out of the residue of the net intestate estate, or twenty per centum thereof, whichever is the greater and a life interest in the whole of the remainder of the estate.
Where deceased has left a surviving child or children but no spouse, the net intestate estate shall devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.
Where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority:

(a) father; or if dead
(b) mother; or if dead
(c) brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none
(d) half-brothers and half-sisters and any child or children of deceased half-brothers and half-sisters, in equal shares; or if none
(e) the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal share

It is prudent to note that the administration of the estate of the deceased is only possible, where letters of administration have been issued for this purpose. The court has wide discretion on whom to appoint as administrator, as long as they are of the age of majority, are of sound mind and are not bankrupt. However, the Act gives an order of preference to guide the court as follows:

surviving spouse or spouses;
children, father, mother, brothers and sisters and any child of the deceased’s brothers or sisters;
other relatives;
the Public Trustee; and/or
and creditors.

What happens to the property of a foreigner who dies while not domiciled in Kenya?

In such a case, the administrator of the estate of the deceased will be required to first obtain a Grant from the country where the deceased was domiciled, after which he/she should apply to the Kenyan courts for reseal of that Grant. It is only after the administrator has been issued with a resealed Grant that he/she shall have the authority to access and administer the property of the deceased.

Conclusion

It is important for foreigners, who own property in Kenya, to familiarize themselves with the succession laws in the country, as it will greatly reduce situations where their succession wishes are rendered null and void due lack of proper documentation or following of the proper procedures. It will also reduce situations where property owned by foreigners ends up in the hands of strangers once they pass away, since their administrators do not know how to gain access to it.