Selling
Off Part of the Estate of a Deceased Person
Before Confirmation of Grant
In Kenya, when
a person dies,
their estate is typically managed by administrators (where
there’s no will) or
executors (where there’s a will) until the court confirms the grant or
distribution of the estate. However, in some cases, beneficiaries or dependents
may seek to sell off part of the estate before the court’s confirmation. What’s the legal position for such a scenario in Kenya?
In
Kenya, the Law of Succession Act (Cap 160) governs the administration of
estates. This law discourages selling estate property before a grant of probate
is obtained.
Case
Law: The Mark Kiptarbei Too Case
In
a recent case, the High Court dismissed an application by the son of former
politician Mark Kiptarbei Too to sell off 50 acres of land as an advance to
boost his business. The court ruled that the application was premature, as the
wealth had not been ascertained, and it was uncertain if other persons would show
up to claim a share of the wealth left by the politician.
Key
Principles
Similar case law highlight
several key principles that guide the sale of part of the estate of a deceased
person before the court’s confirmation:
1.
Ascertainment
of Wealth:
The court must first ascertain the true value and extent of the deceased
person’s estate before allowing any sales or distributions.
2.
Uncertainty
of Beneficiaries:
The court must also ensure that all potential beneficiaries or dependents have
been identified and their claims considered before allowing any sales or
distributions.
3.
Premature
Distribution:
The court will not allow premature distribution of the estate, as this may lead
to disputes and challenges to the distribution.
Why
can’t you sell estate property before probate?
Selling
estate assets before probate is considered “intermeddling with the
estate.” This means dealing with
the property without legal authority.
The Law of Succession Act aims to protect the estate and ensure a smooth
distribution of assets to rightful beneficiaries. Selling property before probate can lead to
complications such as:
1.
Unfair
distribution: If debts or taxes exceed the estate’s value,
selling assets before probate could leave insufficient funds to settle these
obligations. This could disadvantage some beneficiaries.
2.
Hidden
claims: There might be outstanding debts or claims
against the estate that are unknown at the time of sale. Selling assets could
make it difficult to settle these claims later.
3.
Legal
challenges: If the sale is not conducted properly,
beneficiaries or creditors could challenge it in court. This can lead to delays
and additional costs.
What
is succession, or probate?
“Succession”, or Probate
is the legal process of administering a deceased person’s estate. It involves:
1.
Identifying
the beneficiaries – whether named
(if there’s a
will) or
not
2.
Identifying
and valuing all estate assets and liabilities
3.
Settling
any debts and taxes owed by the estate
4.
Distributing
the remaining assets to the beneficiaries as per the will or the law
Obtaining
a confirmation of grant or grant of probate is crucial
for the legal sale of estate property. The court will grant probate to the
executor named in the will or grant administration to an administrator appointed by the court in
cases of intestacy.
Are
there any exceptions?
There
may be limited situations where selling an asset before confirmation of grant or probate
by court is
necessary, for example, to cover funeral expenses,
or for school fees.
The relevant party should make an application to Court
for approval of the intended sale.
It’s necessary to
consult a lawyer before proceeding. They
can advise on the legal risks involved and the best course of action.
Recommendation
It’s
always best to follow the legal process and obtain a confirmation
of grant or probate
before selling any property from a deceased person’s estate. This will protect
you from legal challenges and ensure a smooth administration of the estate.
Remember: The above is not specific legal advice for you. Always consult
a lawyer to determine the best option for your specific situation
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