By Miss Kamau
Worth Noting:
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When a person dies intestate, or leaves a will without naming executors, or when the executors named in the will are unable to act, the Probate Division of the High Court of Kenya appoints an administrator who performs comparable functions to an executor.
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The court accomplishes this by issuing letters of administration to the person so entitled. Grants of administration can be either universal (when the deceased died intestate) or limited (where the deceased died intestate).
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The court will give grants of letters to the beneficiaries, next of kin or extended family, or creditors or where none of the category exist the property reverts back to the government.
As said in a history trite paradigm, death is unavoidable, and as it is the path of every human being, we want to know what happens afterwards, specifically what happens to our possessions, assets, liabilities, and the properties we worked for during our time on this world.
The mechanisms by which the deceased estate devolves after his death is outlined in Kenya’s Law and statutes. Starting with article 2(5) of the constitution, any statute or legislation that is consistent with the constitution which is the supreme law of the nation, is applicable and legal as part of the laws made in Kenya. As a result, Kenya’s Law of Succession Act, CAP 160, Sections 26,29,35 61,66,72,76 has been given new life in regards to inheritance and passing of the deceased persons either testate (leaving a will) or intestate (without a will) form.
When a person dies intestate, preference should be given to particular people to administer the estate. The court has final discretion, except as otherwise expressly provided, as to whom a grant of letters of administration should be made in the best interests of all concerned, but shall, without prejudice to that discretion, 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 the estate.
In the event of partial intestacy, letters of administration in respect of the intestate may be issued, intestate estate shall be granted to any executor or executors who prove the will.
who is? /and who appoints executor or administrator
An executor is the person who administers the deceased person’s estate upon their death and appointed by the estate holder before his demise under the will. Where the administrator on the other hand is appointed by the court via application of letters of administration to administer the estate of the deceased person.
When a person dies intestate, or leaves a will without naming executors, or when the executors named in the will are unable to act, the Probate Division of the High Court of Kenya appoints an administrator who performs comparable functions to an executor. The court accomplishes this by issuing letters of administration to the person so entitled. Grants of administration can be either universal (when the deceased died intestate) or limited (where the deceased died intestate). The court will give grants of letters to the beneficiaries, next of kin or extended family, or creditors or where none of the category exist the property reverts back to the government.
The major responsibility of both the executor and the administrator is to follow out the deceased person’s intentions according to the instructions given out in their will or trust documents, ensuring that assets are allocated to the intended beneficiaries.
When the executor/administrator dies before completion of the estate administration process
Where a single administrator or executor dies, before completion of the succession proceedings, the appropriate direction to take is for the applicant to apply for a grant of letters of administration de bonis non. This can only be done by revoking the grant under Section 76 (e) and rule 44 of the Probate and Administration rules and paragraph 16 of the 5th schedule. Technically or legally, the grant has become useless and inoperative.
It is worth noting that, there is no specific provision in succession law which provides for substitution of a single deceased administrator/executor. In case of such a scenario Section 76 (e) comes to play and a fresh grant of letters of administration de bonis non is issued.
If an executor/administrator passes away after receiving a Grant of Representation authorizing them to close the estate, the administration can be completed by any other jointly acting executor.
If there was just one executor and they died, or if other named executors refuse to assist, the estate administration is completed by the executor named in the deceased executor’s Will. This is known as the chain of representation, and it essentially means that the executor will be responsible for the administration of two estates, the one for which they have been named executor and the original estate. If the executor dies without making a Will, then the Non-Contentious Probate Rules apply.
The most noteworthy circumstances in which special letters of administration are granted basically are administration cum testament annexo occurs when a deceased leaves a will but does not name an executor, or when the executor named has died or refuses to function. In this situation, the court will award the grant to the individual who has the greatest beneficial interest in the estate, usually the residuary legatee.
When an executor dies intestate after probate without having fully administered the estate, or when an administrator dies, the concept of administration cum testamento is followed in the first situation, and the principle of universal grants in the second.
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