Inheritance tax and law
February 25, 2014
The Global Property Guide looks at inheritance from two angles: taxation, and what inheritance laws apply to foreigners leaving property in Kenya: what restrictions there are and whether making a will is advisable.
There is no inheritance or gift tax in Kenya.
Thanks to Walker Kontos
Kenya's inheritance laws affect everyone who owns property in Kenya.
The Law of Succession Act and the Civil Procedure Act apply to all cases of intestate or testamentary succession in Kenya. The Kenyan Constitution guarantees that foreigners of different nationalities or religions are not treated differently to Kenyan citizens, and foreigners can legally inherit, buy, and sell property in Kenya.
The general principles of inheritance in Kenya are:
- Succession to immovable property located in Kenya is regulated by the laws of Kenya, whatever the location or domicile of the owner at the time of death;
- Succession to moveable assets is regulated by the law of the country of the domicile of the owner at the time of death.
Normally the applicable law is no different for spouses with different nationalities and/or religions, and the court in the locality where the immovable property is situated usually has jurisdiction to hear and determine proceedings regarding property rights; however, if the parties who own property are of the Islamic faith, then Islamic law is likely to apply, with proceedings before the Kadhis courts, which have jurisdiction in such cases.
Decisions related to the inheritance of property in Kenya owned by non-resident foreigners who are not of the Islamic faith are normally made by the Family and Probate Division of the High Court of Kenya. This court hears all proceedings relating to the estate of the deceased and follows the procedures and provisions of the Law of Succession Act. If the law of a foreigner's nationality states that the applicable law for inheritance of immovable property located in Kenya is non-Kenyan law, then Kenyan law still takes precedence. This is because any decisions made by a foreign court must be registered with the High Court of Kenya for them to be enforceable in Kenya.
The process of granting probate can be long, especially if contested. It is mandatory to publish an application for probate in the Kenya Gazette for 30 days. The Grant of Probate or Letters of Administration Intestate can then be granted. If the immovable property of the deceased is to be sold, the Grant must be confirmed by filing a formal application to the High Court within six months; however, in exceptional cases, this period can be waived. Accordingly, the process to determine a probate case without any conflicting interests would ordinarily take about 7 to 9 months.
There is no reserved portion in Kenyan law.
In the case of intestacy, the Law of Succession Act sets out how the deceased's property should devolve. A surviving spouse is entitled to the personal and household effects of the deceased, and a life interest in the whole residue of the net intestate estate; however, if the surviving spouse is a widow, and she re-marries, then her life interest is terminated. The surviving spouse has power to give all or any part of the capital of the net intestate estate to any surviving children of the deceased.
If only children are left, with no surviving spouse, then the estate devolves upon the children equally. If there are no children and no surviving spouse, the estate devolves upon the kindred, in the following order of priority: the father; or if dead, the mother; or if no parents, then brothers and sisters, and their children, in equal shares; or if none, then half-brothers and half-sisters and their children in equal shares; or if none, the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares. Failing survival of any kindred, the estate devolves upon the State.
It is advisable for foreigners to make a will.
Most people in Kenya do not make a will, even though the law permits. It is of practical importance for any foreigner owning property in Kenya to make a will, because a will makes it is easier for the High Court to deal with the disposal of property, particularly for beneficiaries who may not necessarily live in Kenya.
In the case of intestacy, all beneficiaries are required to sign consents to the High Court approving the application, but this may be a long and complicated process if many beneficiaries are scattered in different countries. The procedural requirements in the High Court are less tedious if a will is in place. Only the named executors are required to sign the application. A will also avoids any potential conflicts between the beneficiaries.
It is relatively simple to make a will in Kenya. The testator must sign the will in the presence of two witnesses, who will in turn attest the testator's signature. Each of the witnesses must sign the will in the presence of the testator. A foreigner does not have to be in Kenya to make a will. It can be done through a lawyer.
Property can be given during the lifetime of the owner.
An owner can freely give property in Kenya to anyone prior to his/her death, with few legal restrictions.
Kenyan law determines ownership of property.
The courts always apply Kenyan law to determine the ownership of property in Kenya. If issues arise concerning who owns property, or how property is distributed between spouses, then Kenyan law looks primarily at the names on the Title Deeds. Matters relating to where the marriage of spouses took place, or where the partners live, are not considered.
Property can be inherited by minors.
If property might be inherited by a child, or children who are not of a legal age, then a guardian should be appointed in the will to manage their affairs. The maker of the will has a free hand to appoint a suitable guardian.