Upon death, the property of the deceased has to be taken care of, managed, administered and or distributed. Often children under 18 are left behind with no relatives or with ruthless relatives who end up taking advantage of the poor kids. In order to ensure that all the legitimate beneficiaries of the deceased person’s estate are protected, the Law of Succession has made a provision that sets out a list of people who should take charge of the estate of a deceased person. The act then goes ahead to give a guide or a list of preference to be given to certain people to administer the estate where the deceased died intestate (without a Will). This way, it is hard for unscrupulous persons to be appointed to manage the estate of a deceased.
The Office of the Public Trustee was created to facilitate performance of duties related to custodianship and administration of deceased’s estates and minors’ trusts. The Administrator General’s department can be summed up as caring and protecting the property of disadvantaged or vulnerable citizens.
Under Section 34 of the law of succession, a person is deemed to die intestate in respect of all his free property of which he has not made a Will which is capable of taking effect. This simply means that the affairs of the property he or she leaves behind will be taken care of by a person appointed by the court as an administrator.
Under Section 66 of the law of succession, when a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or people to whom a grant of letters of administration shall, in the best interests of all concerned, be made. However, it shall accept as a general guide the following order of preference:
a) Surviving spouse or spouses, with or without association of other beneficiaries (b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by the Law of Succession (c) the Public Trustee and (d) creditors.
The most common administrators are the spouse or other beneficiaries. The public trustees and the creditors are rarely picked as administrators.
The Public Trustees Act governs the procedure to be followed in the event the next person in the preference list is the public trustee.
Under Section 6 (1), the Public Trustees Act — where the public trustee has been informed of the death of any person in Kenya and has been requested to take action in respect of the deceased's estate by any person appearing to have a legitimate interest in the succession to, or administration of the estate — shall cause further inquiries to be made as to the estate of the deceased.
If it appears to the public trustee as a result of inquiries as to the estate of a deceased person that:
- the person died intestate, the deceased having made a will devising or bequeathing his estate or any part thereof, has omitted to appoint an executor, the person or people named as executor or executors in the will of the deceased are dead or have renounced probate thereof or otherwise are unable or unwilling to act,
- probate of the Will of the deceased or letters of administration with the Will annexed to the deceased's estate has or have not been obtained within six months from the date of the death of the deceased, the deceased has appointed the public trustee as an executor of his will, the whole or any part of the estate of the deceased has been left unadministered and the executors of the will of the deceased to whom probate has been granted, or the people to whom a grant of letters of administration to the deceased's estate has been made, are dead or otherwise are unable or unwilling to complete the administration of the estate, he may apply under the Law of Succession Act to the court for a grant of representation and the court shall, except for good cause shown, make a grant of representation to the public trustee.
Where the public trustee has been requested in writing by the executor or administrator (as the case may be) to obtain a sealing in Kenya of any probate, letters of administration or any equivalent thereof in respect of the estate of a deceased person, the public trustee may without any further formality apply to the court to seal and the court may seal the probate, letters of administration or any equivalent thereof.
Under Section 7 of the act, where the particular circumstances of any case appear to the court so to require, the court may, if it thinks fit for reasons recorded in its proceedings, of its own motion or otherwise grant under the Law of Succession Act letters of administration to the public trustee notwithstanding that there are people who under that act or any other written law, would in the ordinary course be legally entitled to administer the estate of the deceased person concerned in preference to the public trustee.