INTESTATE SUCCESSION AND MARRIAGES

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A Gavel Photo:HKM Legal

Intestate succession is the inheritance or distribution of property when the deceased has not left a valid will. A will can be handwritten on a single piece of paper or elaborately typed within multiple pages, depending on the size of the estate and preference of the testator. It must also be signed and dated by the testator in front of two “disinterested” witnesses, who must also sign. Disinterested witnesses include those who will not personally benefit under the will (like beneficiaries).

When one dies intestate, depending on the type of marriage he was in, the following circumstances determine how the estates will be inherited or distributed.

If the man was in a monogamous marriage (married to one wife), and they had children, the surviving spouse inherits all his property. She becomes the absolute administrator and owner of personal properties. These include everything the deceased owned like furniture, jewelry, vehicles, land, etc, except tools of trade, which include academic papers or their profession.

All other assets in a deceased person’s estate after all gifts are handed down to the heirs and debts, taxes, probate fees, administrative costs, and court costs are paid, are referred to as Residuary Estate. The surviving spouse enjoys life interest over it, until her death or remarriage. This estate is equally in the interest of the children because it should be gifted fairly to the deceased children. If the surviving spouse unfairly distributes the property among the children, then by the help of the court, justice is served accordingly. In the case where the deceased had no children, then the surviving spouse solely inherits the property.

If the deceased was in a polygamous marriage (married to more than one wife), the law of succession takes each house (wife), to be a unit. Each surviving wife is to equally get a share of the property. However, factors like the number of children per unit, come into play. For instance, if the deceased left an estate worth KShs. 30 Million and is to be shared among his three wives, then each unit is to get KShs. 10 million. The court however analyzes the number of children in each unit and considers the share.

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