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Where a Testator (the person making the will) passes away, an Executor/Executrix (the person appointed to administer the estate) may apply for a grant of probate.
A Public Trustee may administer a deceased’s estate where a person with legitimate interest requests them to, or where no application for administration of the estate has been made within one month of the date of death. Section 8 of the Public Trustee Act provides that the Public Trustee may administer an estate where the value of the deceased’s property does not exceed Kshs. 3,000,000 (Kenya shillings three million).
Where to apply for grant of representation
Section 47 and 48 of the Law of Succession Act provide that the High Court and Magistrate Court have jurisdiction to hear Succession matters. However, the Magistrate Court is limited to hearing matters where the value of the deceased’s property is less than 20 million shillings as per Section 7 of the Magistrates Court Act.
Rule 7(3) of the Probate and Administration Rules provides that the petition for administration may be filed in the principal registry or a High Court district registry. Where the gross value of the estate does not exceed one hundred thousand shillings, the petition should be filed in a resident magistrate’s registry.
i. Apply for grant of Probate through a Petition (form 78) supported by an affidavit
ii. Attach the original will, 2 copies of the will and the deceased’s death certificate
iii. The application will be advertised in the gazette
iv. If no objections are raised before 30 days lapse, a letter of grant of probate is issued
v. Within 6 months of the grant of probate, the Executor should apply for a confirmation of grant. The Court may however issue a confirmation of grant before the lapse of 6 months where there are no dependant’s, no debts payable, or where it deems it just and equitable.