SUCCESSION AND INSTRUMENTS OF NOMINATION

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A Gavel Photo:HKM Legal

Succession is the process of governing a deceased individual’s Estate. It is the passing over ownership of property from the deceased to other people who are either named in a Will or entitled to inherit the assets and or an estate of the deceased person. A will is a document enforceable by law, that has a record of a deceased person’s wishes and intentions, with regards to the transfer of his or her property upon death.

There are two types of succession. Testate succession and Intestate succession. Testate succession is where a person dies having left a will behind. Here, the succession duty is to implement the wishes of the deceased, how he or she wanted his possessions to be administered or passed on to beneficiaries; who are persons named in the document.

When a person dies without a Will, it’s said they died intestate. In this case, the parties interested in succeeding the deceased, need to file a succession case in a court of law.  

It is possible that a deceased dies testate but did not mention anything in the Will, concerning properties that are in the form of insurance cover, mobile money balances in mobile money accounts like M-Pesa or Airtel money and pension funds. They cannot be automatically inherited according to any order of succession the Will might suggest or sound like or how other forms of wealth were allocated to beneficiaries in the Will or the hierarchy of bloodlines pursuant to the Succession Act. This applies to a case of intestate succession as well.

If no one was nominated or was nominated but an adjustment needs to be made to the list of nominees to cater for additional bonafide beneficiaries, a schedule of distribution is prepared. This is where heirs of the deceased agree amongst themselves to re-distribute these forms of property. The court then confirms if all the parties are in agreement with the adjustment and ratifies it. 

Bank balances and shares are covered within the net estate which are subject to the law of succession. If there wasn’t any nominated heir, the court goes for the bloodline and distributes the property in a fair manner. In the event that no bloodline can be traced, the estate shall be managed by a public trustee.

 

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