For as long as I can remember my grandmother has had me “tema mate mbaya” (spit out) anytime I speculated the death of a living family member. This is in keeping with the African culture that largely considers all death-related topics taboo. Nevertheless, there is much to be said about leaving behind clear instructions of how your assets should be shared in case (knock on wood) you kick the bucket. Apart from giving you peace of mind, writing a will also ease decision-making for your loved ones upon your passing, not to mention you get to make sure ‘Aunty Jane’ with the sticky fingers does not get her hands on the ruby earrings that your wonderful daughter is supposed to wear on her wedding.

What will happen if you don’t write a will, you ask? The answer is that upon approaching the Courts, one of your closer relatives will be appointed as administrator over your property and tasked with distributing it. The distribution is done in order of proximity in familial relationship to you. For instance, where there is a surviving spouse and children, they are entitled to a share of the estate. If there is no surviving spouse or children, other relatives such as parents, siblings, and more distant relatives may inherit the property.

If you would like more control over the specifics of how your property should be shared, a written will is the way to go. By “property,” I refer not only to valuable assets but also to any items of sentimental value to you. Any belongings you attach significance to and wish to ensure are in safe hands upon your passing should be included in your will. For instance, if you would much rather reserve the plot in Kitengela for your favourite niece who has never given you a day of pain while ensuring that ‘Aunty Jane’ who has made it her life’s mission to torment you only inherits your cups and spoons, you need to draft that will soon instead of leaving the decision to others’ discretion. Here are the simple steps you can take to be the final determinant of what happens to your property upon your demise:

1. List your valuable items and assets:

2. Consider how you want them distributed

3. Choose a reliable executor to oversee your will’s execution

4. Draft your will, ensuring it includes your personal details, beneficiaries, and specific bequests, and sign it in the presence of witnesses

5. Store your original will securely and provide copies to trusted individuals

6. Consider optional registration with the Kenyan courts for added security

7.  Inform your executor and relevant parties about your will’s existence and location.

8. Regularly review and update your will to reflect any changes in circumstances or wishes

Contrary to popular belief, you do not necessarily require the services of a lawyer to draft your will, although you can engage one to ascertain that the will is drafted in a clear and legally binding manner. Additionally, the current law provides that income tax may be charged on any income generated from deceased person’s property even after the death and capital gains and stamp duty are chargeable upon transfer of the property. The foregoing notwithstanding, I wish all my readers a long and fulfilling life, and may your will be read many many moons from now.

The legal insights expressed in the legal nuggets are not intended to serve as legal advice. All readers are advised to seek independent legal counsel for matters related to succession planning and will writing should they require the same. The purpose of this articles is to help the University Community understand and apply the law in daily life by clarifying complex or commonly misunderstood legal issues.

Article written by Corporate Legal Affairs Office