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WHY WRITING A WILL IS CRUCIAL FOR YOUR ESTATE PLANNING

Estate planning is a critical aspect of ensuring that your assets, both immovable (such as property) and financial (such as bank accounts, shares, and insurance policies), are distributed according to your wishes after your death. Central to effective estate planning is the creation of a Will, which outlines how a person’s estate should be handled posthumously. In Kenya, this process is governed by the Succession Act Cap 160, and failure to have a clear Will can result in complex legal challenges and potential family conflicts.

What is a Will?

Under the Kenyan Law of Succession Act (Cap 160) , a Will is defined as a legal document in which a person (the testator) outlines how their property should be distributed upon their death. According to Section 3 of the Succession Act , a Will refers to the legal declaration of the testator's intentions with respect to their property or estate, to take effect upon their death. The Act specifically acknowledges both oral and written Wills, with certain requirements for validity, including the capacity of the testator, witnesses, and in some cases, registration.

The Will gives the testator full control over how assets—such as land, houses, bank deposits, shares, and personal belongings—are divided among beneficiaries. Without a Will, a person dies intestate, meaning that Kenyan law, specifically the rules of intestacy under the Succession Act, will determine how the estate is divided, which may not align with the deceased's wishes.

Common Misconceptions About Wills

In my conversations with clients, family, and friends over the years, I’ve encountered notable resistance to the idea of making a Will. Here are two recurring justifications people often cite for not prioritizing this essential document:

“My children won’t fight over money.”

Many people believe that because they have raised their children with good values and morals, there will be no disputes over their estate after they pass away. However, the reality is often different. Even in families that have a strong bond, money and property can lead to disagreements. In fact, history provides numerous examples of high-profile legal battles between family members over inheritance. Without a clear Will, even the best-intentioned families can find themselves in court, facing long and emotionally draining disputes.

“I’ve already nominated beneficiaries for my bank accounts and insurance policies.”

A common belief is that nominating someone on a bank account or an insurance policy is enough to ensure that the right person gets those assets after death. While nominations are helpful, they do not replace the need for a Will. Nominees are merely trustees, holding the asset temporarily on behalf of the legal heirs. They do not gain absolute ownership of the property. This often leads to disputes, as there can be a difference between the nominee and the person named in a Will. Courts in Kenya have dealt with multiple cases where this conflict between nomination and succession has led to litigation.

Why Writing a Will is Important

1. Prevents Family Disputes

It’s a common belief that a well-brought-up family will remain united, even in the face of inheritance issues.

However, the reality is that emotions run high after the death of a loved one, and even minor misunderstandings can lead to significant disputes.

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2. Nominees Are Trustees, Not Owners

One of the most misunderstood aspects of estate planning is the role of nominees in financial assets like bank accounts, insurance policies, and fixed deposits.

While naming a nominee is important for immediate access to these assets upon death, nominees are not the legal owners. The nominee holds the asset in trust for the legal heirs as per the Will or succession laws. Without a Will, the nominee may be obligated to transfer these assets to the heirs, which can lead to conflicts if the nominee is not the intended beneficiary. Supplementing your nominations with a well-drafted Will ensures that your estate is distributed as you intended, without unnecessary delays or disputes.

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3. Clarity and Legal Protection

A properly drafted Will offers clarity about your intentions and ensures that your estate is distributed exactly as you wish.

By specifying beneficiaries and the proportions they should receive, you reduce the likelihood of conflict. It also allows you to appoint an executor, who will be responsible for managing the distribution process. Without this document, the court may appoint an administrator who might not align with your preferences.

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4. Protection for Vulnerable Beneficiaries

If you have young children, a Will enables you to appoint guardians who will care for them if both parents pass away.

You can also set up trusts within the Will to protect the inheritance of minor beneficiaries, ensuring that their inheritance is managed until they come of age. Without a Will, the court may make decisions on guardianship and the handling of assets, which could be contrary to your wishes.

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5. Minimizes the Legal Process

Having a Will in place can reduce the time and effort involved in managing your estate after your death.

When someone dies without a Will, the family must go through the lengthy and expensive process of applying for letters of administration, and the division of assets follows intestate rules. A Will streamlines the process and provides clear guidance on asset distribution, helping beneficiaries avoid unnecessary delays and costs.Writing a Will ensures that your estate is distributed as per your wishes, reduces the risk of family conflicts, and provides clear legal direction. While it may be uncomfortable to confront mortality, a well-drafted Will is the best way to protect your loved ones and your legacy.

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Ensure that your estate planning is complete by drafting a Will and consider registering it, so that your loved ones can avoid complications and legal battles in the future.

If you're interested in learning more about how to initiate the inheritance process through the court, feel free to reach out to us. We're here to assist you.