Understanding Testacy and Intestacy in Kenya: A Guide to Succession Matters
- Jack Githaiga
- Sep 28
- 3 min read
When a loved one passes away, one of the critical issues that arises is how their estate will be managed and distributed. In Kenya, this depends on whether the deceased left behind a valid will (testacy) or not (intestacy). Both processes are guided by the Law of Succession Act, Cap 160, and involve specific procedures and documentation.
A. Testacy – When There Is a Will
What Is Testacy?
Testacy occurs when a person dies having left a valid will.
In such cases, the person(s) named in the will as executor(s) or executrix(es) are responsible for administering the estate. To do so, they must obtain a Grant of Probate from the High Court. This grant gives them legal authority to deal with the deceased’s property.
Documents Required
To apply for probate, the executor/executrix must prepare and submit:
Form P&A 78 (Petition)
Form P&A 3 (Affidavit)
The original will and two copies
Original and certified copy of the death certificate
A schedule of assets and liabilities with estimated values
Certified copies of the executor’s ID/Passport and KRA PIN
Birth certificates, IDs/Passports, and KRA PINs of all beneficiaries named in the will
The Procedure
1.Filing the Petition: The executor files Form P&A 78 and the supporting affidavit together with the original will and death certificate.
2.Gazette Notice: If the documents are in order, the Court directs the notice to be published in the Kenya Gazette. This serves as public notification and allows any objections to be raised within 30 days.
3.Grant of Probate: If no objections are lodged, the Court issues the Grant of Probate. In case of objections, a hearing is scheduled.
4.Confirmation of Grant: After six months, the executor can apply for confirmation of the grant, which authorizes distribution of the estate.
The process typically takes 12 to 15 months from filing to completion.
B. Intestacy – When There Is No Will
What Is Intestacy?
Intestacy arises when a person dies without leaving a valid will. In such cases, the Court appoints administrators through a Grant of Letters of Administration Intestate under Sections 34–42 of the Law of Succession Act.
Procedure for Applying
1.Petition: At least two legal dependents (often the surviving spouse and another family member) petition the High Court.
2.Supporting Affidavit: The petitioners file an affidavit showing details of the estate, proof of ownership, death certificate, and a chief’s letter confirming the dependents.
3.Gazette Notice: The petition is advertised in the Kenya Gazette to allow objections or claims from other parties.
4.Grant of Administration: After 30 days, the Court issues the grant appointing the administrators, who must take an oath to administer the estate faithfully.
5.Confirmation of Grant: After six months, the administrators apply for confirmation of the grant and present a proposed mode of distribution for approval.
Key Documents Required
P&A 80 (Petition)
P&A 5 (Affidavit)
P&A 12 (Affidavit of justification by proposed administrator)
P&A 38 (Consent form)
Chief’s letter listing all beneficiaries and their relationships to the deceased
Death certificate (certified copy)
IDs of the applicants and beneficiaries
Both testacy and intestacy processes aim to ensure fair administration and distribution of the deceased’s estate. The main difference lies in whether or not the deceased left a will.
Because the process is lengthy and document-intensive, it’s advisable to seek legal guidance early to avoid delays, disputes, or errors in the succession process.
Comments