Application for Grant of Probate (Kenya)

An Application for Grant of Probate in Kenya submits the applicant's details to the relevant authority for the approval it seeks.

The Law of Succession Act Cap. 160 distinguishes between two principal forms of grant: a grant of probate, which confirms the authority of an executor named in a valid will, and letters of administration, which are issued where there is no will or where the named executor is unable or unwilling to act. Section 66 of the Act sets out the priority of persons entitled to apply for letters of administration, while Section 51 provides that probate may only be granted to an executor named in the will.

The High Court of Kenya, exercising its probate and administration jurisdiction under Section 47 of the Law of Succession Act Cap. 160 and the Court of Appeal Rules, is the primary forum for probate applications in Kenya. The Probate and Administration Division of the High Court, administered through the Chief Registrar of the Judiciary, handles applications filed in Nairobi and other High Court stations. The Chief Justice may, under Section 48 of the Act, vest jurisdiction in Resident Magistrates' Courts where the net value of the estate does not exceed the prescribed threshold, currently set by Gazette Notice at KES 3,000,000.

The content of a probate application is governed by the Probate and Administration Rules, 1980 (Legal Notice No. 133 of 1980), made under Section 107 of the Law of Succession Act. Rule 9 requires the petition to state the full names and address of the deceased, the date and place of death, the names and addresses of all beneficiaries and dependants, the estimated gross and net value of the estate, and the details of the will. A certified copy of the death certificate issued by the Registrar General under the Births and Deaths Registration Act (Cap. 149) must accompany the petition.

The Succession Act introduces rules on testate and intestate succession that are unique to Kenya's legal system. Section 5 provides that the Act applies to all persons domiciled in Kenya, subject to the exemptions in Section 2(3) for persons subject to Islamic law and customary law in relation to agricultural land. The Law of Succession (Amendment) Act 2014 strengthened the rights of surviving spouses and children, particularly the right to the matrimonial home under Section 35, and extended the definition of 'child' to include children born outside marriage.

Practitioners in Kenya distinguish the grant of probate from a grant of letters of administration with the will annexed (ad colligenda bona), which may be sought on an urgent basis before full probate is granted to preserve perishable assets or prevent dissipation of the estate. Applications for limited grants are governed by Sections 72 to 76 of the Law of Succession Act Cap. 160.

The Kenya Law Reform Commission has noted that delays in the Probate and Administration Division — sometimes exceeding two years for contentious estates — remain a practical challenge. Executors are advised to file complete applications with all annexures, including the original will, the death certificate, and a sworn Affidavit of Executor, to avoid requisitions that prolong the process.

An Application for Grant of Probate in Kenya is required whenever a person dies leaving a valid will and the executor named in that will seeks to administer the deceased's estate. Several specific circumstances make this application immediately necessary.

A grant of probate is required when the estate includes immovable property registered under the Land Registration Act No. 3 of 2012. The Land Registrar will not transfer, transmit, or deal with registered land on the basis of the will alone — a certified copy of the grant of probate or letters of administration must be produced to the Registrar before any dealing in the land is registered. This requirement applies to freehold land, leasehold land, and land held under a certificate of title issued by the National Land Commission.

A probate application is required when the deceased held shares in a company registered with the Business Registration Service (BRS) under the Companies Act No. 17 of 2015. The company's registrar and share transfer agent require production of the grant before approving any transfer of shares from the estate. Similarly, banks and financial institutions regulated by the Central Bank of Kenya will only release funds above the small estate threshold on presentation of a grant.

The application is necessary when the deceased left behind dependants — including a spouse, minor children, or disabled adult children — who have a right to apply for provision out of the estate under Part III of the Law of Succession Act Cap. 160. The grant of probate is the legal instrument through which the executor's authority to make such provision is formally confirmed by the court.

A grant of probate is required when the estate is subject to Capital Gains Tax administered by the Kenya Revenue Authority (KRA) under the Income Tax Act (Cap. 470), or where the estate includes business assets registered with the KRA. The executor must file a final income tax return for the deceased and obtain a tax clearance certificate before distributing the estate.

Where the deceased was a member of the National Social Security Fund (NSSF) or held a pension under the Retirement Benefits Act No. 3 of 1997, administered by the Retirement Benefits Authority (RBA), the executor may need the grant to claim and distribute pension death benefits in accordance with the trust deed or the Act's distribution rules.

A valid Application for Grant of Probate in Kenya under the Law of Succession Act Cap. 160 and the Probate and Administration Rules 1980 must contain the following essential elements.

Identification of the Deceased: Full legal name, last known residential address, national identity card number or passport number, date of birth, date of death, and the place of death. The date of death must be confirmed by a certified copy of the death certificate issued by the Registrar General under the Births and Deaths Registration Act (Cap. 149).

Identification of the Executor: Full legal name, residential address, national identity card number, and the basis of the executor's authority — specifically, the executor's appointment under the will. Where multiple executors are named, the application must state whether all executors are applying jointly or whether some are applying with power reserved to the others.

Description of the Will: The date of the will, the number of witnesses, whether the will is holograph or formally witnessed, and confirmation that the will has not been revoked. The original will must be lodged with the court on filing. Where a codicil exists, it must be identified and lodged together with the principal will.

Inventory of the Estate: A schedule of all assets of the deceased at the date of death, distinguishing between assets within Kenya and assets abroad. Assets within Kenya must include: immovable property (with land reference numbers under the Land Registration Act No. 3 of 2012); bank accounts (with account numbers and bank names); shares and securities; motor vehicles (with logbook particulars from the National Transport and Safety Authority — NTSA); and any other personal property exceeding KES 100,000 in value.

List of Beneficiaries and Dependants: Full names, addresses, and relationship to the deceased of all beneficiaries named in the will and all dependants under Part III of the Law of Succession Act Cap. 160. Minors must be identified with their dates of birth, and a guardian should be named for each minor beneficiary.

Declaration of Debts and Liabilities: A statement of all known debts, liabilities, and encumbrances against the estate, including mortgages registered under the Land Registration Act, hire purchase agreements under the Hire Purchase Act Cap. 507, and any outstanding PAYE or tax liabilities.

Oath of Executor: A sworn Affidavit of Executor — also called the Oath of Executor — verifying the contents of the petition, the death of the deceased, the validity of the will, and the executor's intention to administer the estate faithfully in accordance with the Law of Succession Act Cap. 160. The oath must be sworn before a Commissioner for Oaths or an Advocate of the High Court.

Affidavit in Support: A separate affidavit setting out the circumstances of the death, confirming the executor's capacity, and exhibiting the death certificate and will. The affidavit must be in the prescribed form under Rule 9 of the Probate and Administration Rules 1980.

Filing Fee: The prescribed court filing fee, calculated on the value of the estate under the schedules to the Probate and Administration Rules 1980 and the Court Fees Rules, must accompany the petition.

Forms-legal.com provides this Kenya Grant of Probate Application template as a starting point for executors navigating the probate process. Given the complexity of probate proceedings before the High Court of Kenya, executors dealing with large or contentious estates should engage an Advocate of the High Court to conduct the proceedings.