A will is a legal declaration that outlines your wishes regarding the distribution of your property after death. It becomes effective only upon your passing and can be changed during your lifetime.
A will serves as a legal document that outlines how you want your assets distributed after death. Understanding the core elements of a will ensures your final wishes are honored and your loved ones are protected from unnecessary legal complications.
Essentials of a Will
Your will should clearly identify your assets and who will receive them. This includes physical property like houses and cars, financial assets like bank accounts, and personal items of sentimental value.
In Kenya, for a will to be legally valid, it must be in writing and signed by you in the presence of at least two witnesses. These witnesses cannot be beneficiaries named in your will.
Without a valid will, your estate will be distributed according to intestacy laws, which may not align with your wishes.
Importance of Estate Planning
Estate planning goes beyond just writing a will. It involves organizing your assets and making arrangements for their transfer after death.
A well-thought-out estate plan helps minimize taxes and legal fees that might reduce what your beneficiaries receive. This planning protects your family’s financial future.
With proper estate planning, you can:
- Prevent family disputes over assets
- Designate guardians for minor children
- Specify funeral arrangements
- Create trusts for special circumstances
- Plan for potential medical decisions
Key benefit: Estate planning gives you control over what happens to everything you’ve worked for throughout your life and guarantees financial security and well-being for the loved ones you leave behind.
Roles in a Will: Executor and Witness
The executor is the person you appoint to carry out the instructions in your will. Choose someone trustworthy, organized, and preferably younger than you.
Your executor will:
- Collect and manage your assets
- Pay debts and taxes
- Distribute property as specified
- Handle legal paperwork
Witnesses play a crucial role in making your will legally valid. They must watch you sign the document and then sign it themselves.
In Kenya, you need at least two witnesses who are not beneficiaries in your will. Their role is to confirm you signed the document voluntarily and were of sound mind.
Consider naming an alternate executor in case your first choice cannot serve when needed.
Preparing to Write a Will
Before you start writing your will, you need to get organized and make some important decisions. Good preparation ensures your will accurately reflects your wishes and meets legal requirements.
1. Gathering Necessary Information
Start by making a complete list of your assets. Include real estate, vehicles, bank accounts, investments, retirement funds, and valuable personal items like jewelry or art.
Don’t forget about digital assets such as online accounts, social media, and digital files or photos. These are often overlooked but can be important to your loved ones.
Gather important documents like property deeds, insurance policies, and bank statements. Having these ready will make the process much smoother.
Consider any debts you owe, such as mortgages, loans, or credit card balances. Your executor will need this information to properly settle your estate.
Make a list of important contacts including your financial advisor, insurance agent, and accountant. These people have valuable information about your finances.
2. Selecting Beneficiaries
Think carefully about who you want to inherit your assets. You can name specific people, organizations, or charities as beneficiaries.
Be clear and specific about who gets what. Vague instructions can lead to family conflicts or legal challenges after you’re gone.
Consider special circumstances for any beneficiaries who are minors or have special needs. You may need to set up a trust or make special provisions for them.
If you have young children, choose a guardian who shares your values and is willing to take on this responsibility. Talk to them about it beforehand.
Remember that some assets like life insurance policies and retirement accounts have beneficiary designations that override your will. Review these separately to ensure they align with your wishes.
Drafting the Will Document
Creating a proper will document requires attention to detail and clear language. Your will needs to cover essential elements like assets, beneficiaries, guardianship, and who will handle your estate.
1. Outline Your Assets and Debts
Start by making a complete list of what you own and what you owe. Include bank accounts, property, vehicles, investments, insurance policies, and valuable personal items. Don’t forget digital assets like online accounts or cryptocurrency.
For debts, list mortgages, loans, credit cards, and any other money you owe. This helps your executor understand your complete financial picture.
Key items to include:
- Real estate (houses, land)
- Vehicles
- Bank accounts and savings
- Investments and retirement accounts
- Valuable personal items (jewelry, art, collections)
- Digital assets and accounts
- Outstanding debts and liabilities
Be specific about each asset. Include account numbers, property addresses, and descriptions that clearly identify what you own.
2. Specifying Asset Distribution
This section forms the heart of your will. Clearly state who gets what after your death. Name each beneficiary with their full legal name and relationship to you.
You can distribute assets in several ways:
- Specific gifts: “I give my gold watch to my son, John Smith”
- Percentage divisions: “I give 50% of my estate to my wife, 25% to each child”
- Residual gifts: “After specific gifts, I leave everything else to my sister”
Consider including alternate beneficiaries in case your first choice cannot receive the inheritance. This prevents complications if a beneficiary dies before you.
Be precise in your wording to avoid confusion. Instead of “my car,” specify “my 2022 Toyota Camry with registration number KDY 123Z.”
3. Appointing Guardianship
If you have children under 18, name a guardian who will care for them if you and their other parent die. Choose someone who shares your values and has the ability to raise your children.
Discuss your choice with the potential guardian before naming them in your will. Make sure they’re willing to take on this responsibility.
You might consider naming:
- A primary guardian
- An alternate guardian (if the first cannot serve)
- Separate guardians for different children if appropriate
You can also include specific instructions about your children’s upbringing, such as education preferences or religious considerations. However, keep these reasonable and not overly restrictive.
4. Choosing an Executor
An executor carries out the instructions in your will. They’ll gather assets, pay debts, file tax returns, and distribute property to your beneficiaries. This should be someone trustworthy and organized.
Many people choose a spouse, adult child, or close friend as executor. You can also name a professional like a lawyer or bank as executor, though they will charge fees.
Executor responsibilities include:
- Locating and managing all assets
- Paying debts and taxes
- Distributing property to beneficiaries
- Handling legal paperwork
Name an alternate executor in case your first choice cannot serve. Discuss this role with potential executors before naming them in your will.
According to Kenyan law, your will must be in writing (typed or handwritten) and include your full name and address. The document must clearly state it is your last will and testament.
Legal Formalities and Execution
Creating a valid will requires following specific legal steps to ensure your wishes are carried out after you’re gone. Proper signing, witnessing, and legal review are essential elements that make your will legally binding and less likely to be challenged.
Signing Requirements
Your signature is what makes your will legally binding. A will must be in writing – either typed or written in pen. You must sign at the end of the document.
Make sure you’re of sound mind when signing. This means you understand:
- What property you own
- Who your family members are
- What your will is doing
Sign in front of your witnesses. Use your regular signature, which is the same one you’d use on official documents, to ensure its verifiable.
If you’re physically unable to sign, you can direct someone else to sign on your behalf, but they must do this in your presence.
Witnessing Process
Most jurisdictions require at least two witnesses for a valid will. These witnesses must:
- Be adults (18 or older)
- Be mentally competent
- Not be beneficiaries named in the will
Your witnesses must watch you sign the will. Then they must sign the will themselves in your presence and in each other’s presence.
Witnesses don’t need to read your will or know what’s in it. Their role is simply to confirm that you signed the document voluntarily and appeared to be of sound mind.
Each witness should include their address alongside their signature for easier contact if required later.
Notarization and Legal Review
While most wills don’t legally require notarization, having your will notarized can be helpful. Some states allow “self-proving wills” with notarized witness affidavits that can simplify the probate process.
Having a lawyer review your will is highly recommended, especially for complex estates. A legal review helps:
- Ensure all formalities are properly followed
- Check that your will meets all legal requirements
- Identify potential issues that could lead to challenges
The lawyer can confirm your will follows your jurisdiction’s specific rules. Legal review often catches mistakes in execution that could invalidate your will.
Consider storing your will in a secure location known to your executor. Make sure your executor knows where to find important documents when needed.
What to Do After Writing Your Will
Once you’ve written your will, you need to take important steps to ensure it’s properly stored and kept up-to-date. Proper handling of your will after writing it is just as important as creating it in the first place.
1. Storing Your Will Safely
Your will must be kept in a secure location where it can be found after your death. Consider keeping it in a waterproof and fireproof safe at home, or in a bank safety deposit box.
Make sure your executor and close family members know where your will is stored. They should be able to access it quickly when the time comes.
Some people choose to leave copies with their attorneys or law firm, such as Kraido Advocates or even the executor. In Kenya and many other countries, you can also register your will with official authorities with the help of a lawyer.
Important: Never store your only copy of a will in places that might be sealed after death, such as a personal safe that others can’t access.
2. Keeping Your Will Updated
Your will should be reviewed and possibly updated after major life events:
- Marriage or divorce
- Birth or adoption of children
- Purchase of significant assets
- Moving to a different country
- Changes in tax laws
Our legal team’s estate planning experts recommend reviewing your will every 3-5 years, even without major changes. Minor updates can be made with a legal document called a “codicil.”
When making significant changes, it’s often better to write a new will that clearly revokes all previous versions. This prevents confusion and potential challenges to your wishes.
Remember: Dating your will and any updates properly is essential for proving which version is most current.
Contact our law firm for legal help via our Inquiry Form to get help with writing a will in Kenya or schedule a consultation with our lawyers to determine the best action for you.
