Having a will is an essential part of estate planning in Kenya.
Our Law Firm has received a steadily rising number of clients interested in writing wills over the last decade, which has inspired us to write on the subject.
This article provides an overview of the legal guide to wills in Kenya, its importance, how to write one, and some frequently asked questions.
What Is A Will?
A will is a legal document that outlines how a person’s assets and property will be distributed after death.
A will can also provide guidance on who should take care of your minor children and other dependents and the appointment of a guardian for them.
The person writing a will or leaving a legacy or bequest is called a testator.
Writing a will in Kenya can be complicated, but ensuring your wishes are respected and followed after you are gone is a must-do.
What Is A Gift Left In A Will Called?
A gift left in a will is called a bequest.
A bequest is a provision in a will that leaves a specific asset or property to a designated beneficiary.
Bequests can be made for specific amounts of money, property items, or a percentage of the estate.
Bequests can be made to an individual, an organization, a trust, or for charitable purposes.
Bequests are a way for a testator (the person writing the will) to distribute their assets according to their wishes after death.
Why Do You Need A Will?
It is essential to have a will because it allows you to control what happens to your assets and property after you die, rather than leaving it up to the laws of intestacy. Without a will, the distribution of your assets may not align with your wishes and your loved ones’ needs.
For example, Kenyan Law stipulates that your assets go to your spouse and immediate children — biological and adopted children are entitled to a share of the property.
What Are Some Things To Consider When Writing A Will?
Writing a will is not a one-day affair. You must dedicate time and think about what you want to happen to your estates and property once you’re no longer around.
When writing a will, there are several things to consider, such as:
- Who you want to appoint as executor of your will, the person responsible for carrying out the will’s instructions.
- Who do you wish to receive specific assets and property?
- Any outstanding debts or loans.
- Who do you want to serve as guardian of your minor children?
- Instructions for your funeral and final disposition of your remains.
- Any charitable donations you want to make.
- Any notable bequests.
- Any trusts you want to set up.
It is essential to consider potential legal challenges and ensure your will is properly executed and witnessed. It is also good to consult with a lawyer like ours at Kraido Advocates to ensure your will is legally valid and complies with Kenyan laws.
Consequences Of Not Having A Will
Death can be very unpredictable, and Kenyans often don’t write wills out of thinking we are too young or keep putting it off for a later date that may never come.
We would like you to know that not having a will can have several consequences, such as:
- The distribution of your assets may not align with your wishes.
- It Can Cause Disputes Among Your Loved Ones – Court battles over property are not unheard of in Kenya and worldwide.
And unfortunately, disputes sometimes transcend courtroom walls, and people hurt each other in real life. A will can help prevent that from happening to your loved ones by protecting them and what you’ve worked so hard for, even when you’re not around to do it yourself. - It can make the probate process longer and more costly for your loved ones.
- It can lead to unintended consequences, such as a family member receiving assets they cannot handle or do not want.
- It can lead to a court-appointed guardian for your minor children rather than someone you trust and want to raise them.
Additionally, having a will can make the probate process, which is the legal process of settling a person’s estate after their death, smoother for your loved ones. A will can also help minimize disputes among family members or potential legal challenges to the distribution of your assets.
Generally, the best time to write a will is when you first acquire assets or property and want to ensure they are distributed according to your wishes after death. This might be when you purchase your first home, get married, or have children.
Keeping your will updated after every significant change in your life is also a good idea.
Common Mistakes People Make When Writing Wills
Writing a will is an effective way of communicating your wishes after you pass away. Unfortunately, many people make mistakes when writing their wills in Kenya, leading to costly legal battles and other complications.
In this section, we’ll discuss common mistakes people make when writing a will in Kenya and how to avoid them.
- Not consulting with a lawyer or professional: You can write a will without a lawyer, but it’s crucial to seek legal guidance when drafting a will to ensure that it is valid and complies with Kenyan laws.
- Not updating the will regularly: A will should be reviewed and updated regularly to reflect changes in assets, beneficiaries, and personal circumstances.
- Not being specific enough: A will should specify the assets being distributed and the particular individuals or organizations to receive them.
- Not appointing an executor: A will should name an individual or organization responsible for managing assets’ distribution according to the will’s terms.
- Not signing and witnessing the will correctly: A will must be signed by the testator and witnessed by two independent witnesses to be considered valid under Kenyan law.
- Not keeping a copy of the will in a safe place: The original will should be kept in a safe place, and copies of the document should be given to the executor, lawyer, and any other relevant person or organization.
- Not being aware of inheritance tax laws: Inheritance tax laws in Kenya may apply to the distribution of assets in a will. Therefore, it is vital to be mindful of these laws and plan accordingly.
Understanding these common pitfalls ensures that your will is written correctly and accurately reflects your wishes. Additionally, always seek professional advice from a lawyer before making any decisions.
Don’t hesitate to contact us to get started on your will today.
Why Do You Need A Lawyer When Writing A Will In Kenya?
There are several reasons why you may need a lawyer when writing a will in Kenya:
- Legal expertise: A lawyer can provide you with the legal knowledge and guidance you need to ensure that your will is legally valid and complies with the laws of Kenya.
An attorney can advise you on the best way to structure your will and ensure all the necessary formalities are followed. - Tax planning: Lawyers can also help you with tax planning and advise you on the tax implications of your will. They can help you take advantage of all available exemptions and deductions to minimize the amount of estate duty that will be payable.
- Avoiding disputes: A lawyer can help you anticipate and prevent potential disputes among your beneficiaries by identifying and addressing any potential issues before they arise. Remember that prevention is better than cure.
- Estate planning: Attorneys can also advise you on other tools that can be used in conjunction with your will to ensure that your assets are distributed according to your wishes and that your loved ones are taken care of.
- Review and update: A lawyer can review and update your will periodically to ensure it complies with the current laws and aligns with your current circumstances.
- Representation in court: If disputes regarding the will arise and the court case needs to go through probate, having a lawyer represent you or your estate in court can be valuable.
Involving a lawyer when writing a will in Kenya can provide peace of mind and ensure your wishes are respected after death. It also ensures that the will is legally binding and complies with Kenyan Laws.
What Should I Consider When Choosing An Executor For My Will?
When choosing an executor for your will, it is important to consider the individual’s skills, experience, and reliability. Executors are responsible for carrying out the wishes of the deceased.
A good executor should be able to understand complex legal documents, manage financial matters, and handle difficult conversations with family members. Additionally, they should understand estate taxes and other relevant laws to ensure everything runs smoothly.
The easiest option for your executor is your attorney or one of our Probate Law expert lawyers here at Kraido Advocates.
Consequences Of Not Having A Will Executor (Will Enforcer)?
If you do not have an executor named in your will or if the executor you named is unable or unwilling to serve, the court will appoint an administrator to handle the distribution of your estate.
The court selects the administrator, often a family member or a close friend.
The intestate laws typically provide for the distribution of assets to a surviving spouse and children. Still, they may not reflect your specific wishes or consider the needs of your loved ones.
Frequently Asked Questions
Below we answer some commonly asked questions from our clients.
What Are The Legal Requirements For Writing A Valid Will In Kenya?
The Succession Act provides legal requirements to create a valid will in Kenya. The person writing the will, known as the testator, must be 18 or older, mentally capable, and free from coercion or pressure at the time of writing. The testator must sign the will in the presence of at least two witnesses. If the will is oral, it must be made within three months of the testator’s death, except for military personnel who die during active duty.
How Often Should I Update My Will?
Reviewing and updating your will periodically is an excellent idea, such as after a significant life event or change in your family dynamics. This will ensure that your wishes are still aligned with your current circumstances.
What Makes A Will Valid In Kenya?
For a will to be valid, there must be witnesses who will also be signatories. These witnesses should not be beneficiaries of the will to avoid a conflict of interest. If one of the witnesses is a beneficiary, they need two witnesses to back them up.
Are There Any Tax Implications To Consider When Writing A Will In Kenya?
Inheritance gifts (bequests) are not subject to taxes, but the revenue generated by property or businesses is taxable at standard rates.
What Happens If A Person Dies Without A Will In Kenya?
Without a valid will, the intestacy laws of Kenya will determine how your assets are distributed. A probate court often does this, and the process can be unfair and burdensome for those left behind and costly in terms of legal fees and other associated costs.
How Long Is A Will Valid In Kenya?
Written wills in Kenya are valid until changed by the testator, but oral wills are valid for three months. In the case of military personnel who die during active duty, their oral wills are valid even if made more than three months before their deaths.
Can An Executor Of A Will Be A Beneficiary In Kenya?
A will’s beneficiary cannot be an executor in Kenya due to a conflict of interest. A beneficiary can only witness the writing, but an executor must not be a beneficiary.
Overview
Overall, having a will is crucial in guaranteeing that your loved ones are taken care of and that what you worked hard for is handled as you would have wanted.
Consider all the factors and consult with an attorney to ensure your will is legally valid, executable, and compliant with the laws.
For help with your wills, contact Kraido Advocates, and our probate and administration law experts will help you no matter where you are in Kenya.
