Intermeddling with an estate could land you in Jail

Mar 10, 2020

LawyerWangu®

A Definitive Guide to Grants you need to Administer the Estate

 

A loss in the family is a distressful and disorienting experience. It changes and destabilizes you and other people affected and it is only fair that you are given time to adjust to the new reality. Unfortunately, the world is not perfect and it keeps moving regardless of the tragedies you are facing, whatever obligations/responsibilities you had before, you are still going to have them after and if the deceased had any obligations the survivors would need to take them up and deal accordingly.

Some obligations are pressing such as medical/funeral expenses, school fees for children etcetera. and because you may have not anticipated a sudden absence they catch you by surprise. You begin looking at the deceased’s assets that can quickly realise cash and so you sell a motor vehicle or some personal effects they own. While your actions may be in good faith, before the law you have committed an offence by interfering/intermeddling with the estate of the deceased before administration and it could land you in jail.

What is intermeddling?

There are many circumstances where you can be said to be intermeddling but the test is set out in Section 45(1) of the Law of Succession Act (LSA). It provides that no person is authorized to take possession, dispose or otherwise intermeddle with the free property of a deceased person for any purpose unless expressly authorized by the LSA or other written law or by a Grant of Representation. It is plain and simple that you have no business handling any free property (estate) of a deceased person unless you are permitted through a grant of representation or other enabling law or order. Section 45(2) provides that if you breach this provision you are guilty of a criminal offence – Intermeddling and are liable to a fine not exceeding Kshs.10,000 or to a term of imprisonment not exceeding one year or both. You would also be answerable to the rightful executor or administrator of the estate to the extent of the assets that you intermeddled with or appropriated. This article will take you through administration of an estate, what grants you require for different circumstances and where to get the Grants.

What is Administration of an Estate

Section 3 of the LSA defines an estate as the free property of a deceased person. It goes ahead to define free property as property which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by their death.

Administration is the process of managing the estate of a deceased person and includes collecting and safeguarding the assets, paying debts, liabilities and administration expenses and distributing estate to entitled beneficiaries.

What is a Grant of Representation?

This is an order of a court appointing a petitioner/applicant as the personal representative of a deceased person. The personal representative is granted powers to administer the affairs and the estate of the deceased (as if the deceased were alive) in the name of the deceased. The personal representative is also responsible and answerable to the court and to the beneficiaries of the estate on how he/she has managed and accounted for the estate.

Grants of representation are issued depending on the circumstances and purposes as follows:

  1.  Grant of Probate – This is a grant of representation appointing an executor/executrix where the deceased had a valid will.
  2. Grant of Letters of Administration – This is a Grant of representation where the deceased has died without a will or a valid will. An entitled applicant is appointed as administrator of the estate.
  3. Limited Grants – Limited/temporary Grants of representation are issued under special circumstances mainly for the purpose of collecting and preserving the estate of the deceased before a full grant can be issued. These grants are provided for under rule 36-39 of the Probate and administration Rules.

Who can take out Grants of Representation?

Depending on the state of affairs of the deceased’s estate different people will be entitled to take out Grants. For example, where a person died with a will and had appointed executors, those executors would be entitled to take out Grant of Probate.

Section 66 of the LSA provides that where deceased dies without a will (intestacy) the court shall have final discretion as to the person(s) to whom Grant of Letters of Administration shall issue having regard to the best interest of all concerned but as a general guide the following order of preference is accepted:

  1. Surviving spouse or spouses;
  2. Child or Children of the intestate;
  3. Parents of the intestate:
  4. Other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests: brothers and sisters, half brothers and sisters and relatives who are in the nearest degree of consanguinity up to and including 6th Degree.
  5. Public Trustees; and
  6. Creditors.

Section 56 of the LSA provides that no Grants of Representation shall be issued to any person who is a Minor, of unsound mind or bankrupt. It further provides that no Grants shall be issued to more than four (4) people with respect to the same property or estate.

Where to apply for Grants of Representation

In order to get a Grant one must apply to Court. One may apply to the High Court or the Magistrates’ Court.

Section 47 of the LSA provides that the High Court has jurisdiction to entertain any application and determine any dispute under the LSA and to make orders that they deem expedient.

Section 48 of the LSA as read together with the Magistrates’ Courts Act No.26 of 2015,    raises the jurisdiction of the Resident Magistrate to subject matter whose value does not exceed five million shillings. The Resident Magistrate can therefore preside over a probate application/petition where the value of the estate is below five million shillings and below provided it is not an application for revocation or annulment of a grant.

When making an application personally, present the documents to the Principal Registry or the Residential Magistrate Registry and the Registrar will allocate the matter to the relevant Court OR Magistrate.

Types of Grants

As we saw earlier there are different types of Grants that one can apply for depending on the state of affairs of the estate. If the deceased died with a will appointing executors the grants you apply for will be different from where the deceased died without a will.

The following are the different types of Grants and Forms used to apply for them:

  1.  Grant of Probate
    This is a Grant that is applied for where the deceased died with a will where they appointed an executor. That executor(s) is to apply for Grant of Probate.Application is made in Petition Form 78 and Affidavit Form 3.
  2. Grant of Letters of Administration with Will Annexed.
    This Grant is applied for when a person dies with a will, but without appointing and Executor. The spouse, children, parents, siblings etc. may apply for letters. Application is made in Petition Form 79 and Affidavit Form 3.
  3. Grant of Probate of Proof of Oral Will
    This Grant is applied for where a person makes an oral will naming an executor and dies within 3 months of making it, or in the case of a member of the armed forces within the same period of active service. Application is made in Petition – Form 44 and Affidavit form 3.
  4. Grant of Letters of Administration Intestate
    This Grant is applied for where a person dies without a will.Application is made in Petition Form 80; Affidavit Form 5; Affidavit of Means Form 12 Affidavit of Justification of Proposed Sureties Form 11; and Guarantee of Personal Sureties Form 57.
  5. Limited Grant (Grant ad Coligenda bona)
    Rule 36 of the Probate and Administration Rules 1980 provides that where because of special conditions or urgency it is not possible to make a full Grant of Representation on may apply to court for Grant ad colligenda bona to prevent estate from waste.
    The purpose of this Grant is limited to only; collecting, receiving and preservation of an estate pending issuance of full Grant of Representation.
    Application is made in Petition Form 85 and Affidavit Form 19.
  6. Grant for Special Purposes
    These Grants are made in special circumstances e.g. where there is urgency, where an administrator/executor dies before completing administration or where the estate is subject to litigation. They include:
    Administration ad Litem – This grant is used to institute or defend against suits to the estate only.
    Administration pendete lite – Where parties are disputing over the estate, the Court issues this grant to ensure the estate does not go to waste. No division or apportionment of the estate is done during this time. To apply for this grant you require Petition – Form 90 and Affidavit –Form 19.
    Grant of Letters of administration de bonis non administratitis or Probate at Rest – when the executor or administrator dies before completing administration another person may apply for this Grant for the purposes of completing administration. To apply for this grant you require Petition – Form 86 and Affidavit – Form 19.
    Special Limited Grant – this grant is applied for in special circumstances e.g. where one needs to pay school feed. To apply you require Petition –Form 85A and Affidavit – Form 19.
  7. Resealing of Grant of Probate or Letters of Administration
    Where a person dies abroad but had property in Kenya, Grant of Probate or Letters of administration are applied to in their country and then filed in the High Court in Kenya.
    To make an application to reseal a Grant of Probate or Letters of administration you need Petition- Form 81, Affidavit – Form 7 and a certified copy of the Grant issued by the foreign country.

Conclusion

Handling the estate of a deceased person is a delicate matter that should not be undertaken carelessly. Careless administration causes unnecessary turmoil within the family and results in prolonged court cases which ultimately undermine the estate.

The law is unequivocal, if you have not been issued with a grant of representation, you are a stranger before the law and if you deal or attempt to deal in anyway with the estate of a deceased person the repercussions are as dire as a jail term. We have laid out the appropriate proceedings to be followed when dealing with the estate of deceased person so you have lawful standing when dealing with an estate. #knowyourlawkenya.

Sources
  1. Law of Succession Act cap 160.
  2. Probate and Administration Rules, 1980.
  3. Ang’awa M, Procedure in the Law of Succession, Law Africa, Nairobi, 2011.
  4. Legal Notice 39 of 2002.