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Disposing Inherited Property in Kenya

Introduction

The death of a family member often comes with its fair share of tragedy, and one of the most common issues family members are left grappling with, is how to dispose of the deceased’s property. This is partially because when it comes to succession matters, the law is technical as to when and how title over property transmits from the deceased to a beneficiary of their estate. Consequently, in ensuring that the appropriate process is followed, it is important not only for a person planning on disposing of the inherited property but also for the person intending on acquiring property that is subject to a succession matter or dispute to know the correct procedure for the transmission of title to the property.

Grant of Representation

Only a personal representative or executor in the even the deceased left a valid will, has the authority to dispose of the deceased’s real property.[1] It is therefore important for the administrator of the estate to obtain a grant of representation. If the deceased left a will, the executor shall apply to the court for the grant through a petition for grant of probate. However, if the deceased does not have a valid will, or has a will but did not appoint an executor, the proposed administrator will apply for a grant through a grant of letters of administration.[2]Once the administrator has the grant, he should apply to be registered as an administrator of the deceased’s estate.[3] 

A person who sells any of the deceased’s property before obtaining a grant will be found guilty of intermeddling which is a punishable offence.[4] Further, the transfer of a deceased person’s property will only be registered once the grant of probate or letters of administration has been confirmed respectively.[5] It is important to note, that any dealings with the deceased property such as among others the sale, transfer, or lease without prior confirmation of grant will be void.

Registering the Disposition

An administrator having confirmed the grant can proceed to have registered, any transfer, discharge of charge, and surrender of the lease relating to the deceased’s property.[6] The administrator can therefore proceed to dispose of the deceased’s property either by distributing it to the beneficiaries or by selling the property to a third party.

The administrator should then submit the transfer in the prescribed form together with: a copy of the grant of letter of administration or grant of probate duly certified by the court; a copy of the certificate of confirmation of grant of probate or grant of letters of administration duly certified by the court; the certificate of lease or title over the land; land rates clearance certificates; land rent clearance certificate where applicable; any consent required for the transfer; and any other legally required document.[7]

This process is important in ensuring that a beneficiary or purchaser acquires valid indefeasible title over the property. Nevertheless, if a person inherits property from a close relative or, the transferor of the property, unfortunately, passes away before the sale is completed, it would be prudent to seek proper legal advice to ensure that you can acquire a valid title over the property.

For more information, please contact:

Benson Ngugi benson.ngugi@attorneysafrica.com

Hellen Waithira hellen.waithira@attorneysafrica.com

Rushmi Matete rushmi.matete@attorneysafrica.com


[1] Land Registration Act, Section 61(1)

[2] Law of Succession Act (2012), Section 53

[3] Land Registration (General) Regulations LN No. 278 of 2017, Clause 56

[4] Law of Succession Act (2012), Section 45

[5] Land Registration (General) Regulations LN No. 278 of 2017, Clause 53

[6] Land Registration Act, Section 61(2)

[7] Land Registration (General) Regulations LN No. 278 of 2017, Clause 57 and 58

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