Ever think about what would happen to your assets when you are no longer here on earth? Who would get what? Or will your beneficiaries have to off each other as they fight for a share of your property? You might think it’s not worth the family infights we are all too familiar with, but people have been known to do worse things for money.
Heard of spouses, especially women, kicked out of their matrimonial home by in-laws? Or children left without a single cent despite their parent/s having left behind some assets? Whatever stories you might have heard about other families and thought it’d never happen to you, it just might.
And that’s where a Will comes in!
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ToggleA Will is a legal document used to convey one’s wishes, especially when dividing one’s property upon death. It is your chance to outline how you wish your assets to be distributed amongst your beneficiaries upon your demise.
Without a Will, your estate goes through the complex and stressful process of intestate succession—where the law decides how your property is divided, often in ways you might not have intended.
One of the key reasons for having a will is to keep your estate from going through the intestate process. If you don’t have a Will, your assets will be distributed according to the laws of intestacy in Kenya. This may not align with your wishes and could lead to unintended consequences.
Feel like the state taking matters into its own hands isn’t sitting well with you? Then a Will gives you control over your asset distribution when you are no longer there, allowing you to spell out who gets what and in what proportion.
Whether it’s a piece of jewelry, your digital assets, or your financial investments, a Will ensures that these are passed on according to your desires, not divided based on a one-size-fits-all legal formula.
Knowing that your affairs are in order can provide you with immense peace of mind. You can rest assured—pun absolutely intended—that your assets will be distributed according to your wishes, preventing potential disputes and uncertainties.
Let’s face it, even the closest-knit families can face tension and conflict when it comes to matters of inheritance. A clear, well-constructed Will can dramatically reduce the likelihood of misunderstandings and disputes among your loved ones. It acts as your definitive voice, guiding your family through the distribution process with as little stress as possible.
If you have children under 18, a Will is indispensable. It’s where you can express your wishes about who should look after your children should the unthinkable happen. Without this guidance, the decision defaults to the courts, which might not align with your parental intentions.
When drafting your Will, it is important to ensure that it meets the minimum legal requirement. This helps ensure your Will will be upheld as a valid legal document. Here’s what you need to know to ensure your Will stands up in a court of law.
First off, you must be at least 18 years old to create a will in Kenya, aligning with the legal definition of an adult. Besides age, you also need to be of sound mind. This means you understand the nature of the will-making process and the implications of the decisions you’re making.
A written Will must have your signature to be considered valid. Typically, this should be at the end of the document to signify that you acknowledge everything stated above it as your final wishes. If you’re unable to sign due to illness or another reason, another person can sign on your behalf in your presence and under your direction.
You’ll need at least two witnesses to your signing. These witnesses must also be of sound mind and at least 18 years old. Importantly, they should not be beneficiaries of the will or the spouse of a beneficiary, as this could create a conflict of interest and potentially invalidate their witness status.
However, should you wish to have a beneficiary as a witness, you must also have 2 more witnesses who are not beneficiaries.
The Will must be made without any external pressure or undue influence. It must be clear that the decisions within reflect your free and uninfluenced intentions. Any hint of coercion could challenge the validity of the document.
Any assets you wish to bequeath under your Will must be free, meaning you were legally competent to dispose of them when alive. For instance, assets held under joint tenancy, like land and joint bank accounts, are not considered free property since they pass to the other party, the joint tenant.
However, when it comes to accounts such as bank accounts, retirement accounts, and such, regard is given to the listed beneficiaries under the bank mandate or the mandate of the particular firm in question. That’s why it’s important to always keep your beneficiaries in financial institutions up to date.
Before we get into the steps of drafting a Will, let’s look at some of the common terms you should know.
Now that you know what’s needed to make your Will a valid document, let’s look at the steps you need to take to write a Will in Kenya.
Start by making a comprehensive list of your assets. This includes your physical properties like real estate, vehicles, and personal items, as well as intangible assets such as bank accounts, stocks, and digital assets. This will help you understand what you have, which comes in handy when deciding how you want to distribute each asset.
Don’t forget your liabilities, like loans, credit cards, and mortgages, among others. You should leave instructions on how these should be treated. For instance, you can instruct your executor to sell certain assets to enable repayment of these liabilities.
Who do you want to inherit your assets? You can choose family members, friends, charitable organizations, or pets. Yes, people have left their pets an inheritance; although there are some technicalities.
Whomever you wish to be a beneficiary, be clear about who gets what. Specifying this can prevent potential disputes and ensure your assets are distributed according to your wishes.
An executor is the person who will manage your estate according to the instructions in your Will. Choose someone responsible and capable of handling financial matters. It’s often wise to discuss this role with the person you intend to nominate to ensure they are willing and prepared to take on the responsibility.
If you have children under the age of 18, it’s important to appoint a guardian in your Will. This should be someone you trust to raise your children in a manner you approve of.
Like choosing an executor, it’s advisable to discuss this responsibility with the prospective guardian to make sure they are ready and willing to accept.
With all the necessary information at hand, start drafting your will. You can do this yourself using a will template. However, I recommend seeking legal assistance for a more tailored document and ensuring it meets the necessary legal requirements.
Most importantly, ensure that your Will clearly states your intentions, uses unambiguous language, and includes all necessary details like the full names and addresses of beneficiaries and the executor.
Once your Will is written, sign it in the presence of at least two independent witnesses. Remember, these witnesses should not be beneficiaries or married to a beneficiary of your Will. Their role is to verify that you are willingly and soundly signing the document.
After signing, store your Will in a safe place. Inform your executor and any other important party about where it is kept so that it can be easily accessed when needed. Some choose to keep their Wills in a safe deposit box, with an attorney, bank’s safe deposits, or in other secure locations.
As your life circumstances change, so might your wishes for your Will. Regularly review and update your will to reflect new assets, changed relationships, or altered beneficiary designations. This ensures that your estate plan remains relevant and aligned with your current wishes.
As mentioned, it is quite common for beneficiaries and non-beneficiaries to contest a Will. To help minimize the chances of this happening, here are some of the tips to keep in mind.
The clarity of your Will can significantly impact its effectiveness. Use simple, direct language that leaves no room for interpretation. Specify names, relationships, and details of assets clearly to avoid any ambiguity. For instance, instead of saying “my car,” specify “my 2019 Toyota Corolla, registration number ABC 123.”
To prevent any potential disputes or confusion, clearly identify your beneficiaries by their full names and their relationship to you. If possible, include additional identifiers like physical addresses or ID numbers.
This precise identification helps ensure that there’s no confusion about who you mean, even if there are multiple people with the same name in your circle.
When dividing your property, think about the practicality and fairness of your decisions. If you’re leaving assets that can be divided, like money, consider specifying percentages instead of fixed amounts, which can change due to the estate’s value fluctuating over time.
Keep in mind that your beneficiaries can contest your Will if they feel the division of property is not fair. It can also go a long way to provide explanations for the decisions you make about the division of your property.
Choosing the right executor is crucial as they will manage the process of executing your Will. Select someone who is not only trustworthy but also organized and capable of handling financial matters competently. Make sure to discuss this role with them beforehand to ensure they are willing and prepared to take on this responsibility.
Ensure your Will is signed in the presence of at least two independent witnesses who are not beneficiaries. Proper witnessing is crucial to the legal validity of your Will. Keep the signing formal and ensure each party understands their role in the process.
Your Will should be a static document you just draft and forget about. Review and update it regularly, especially after major life events like marriage, divorce, the birth of a child, or the acquisition of significant assets. Keeping your Will updated ensures it always aligns with your current wishes and life situation.
Although you can download editable templates online, it’s highly recommended you seek professional advice. Consulting with a legal professional specializing in estate planning can provide clarity on complex issues, help draft clear clauses, and ensure your will meets all legal requirements in Kenya.
Yes, you can write your own Will without a lawyer’s assistance, provided it meets all legal requirements, such as being in writing, signed by you, and witnessed by at least two people who are not beneficiaries. However, consulting a lawyer can be beneficial to avoid common pitfalls and ensure all legal bases are covered, especially if your estate is large or complex.
No, notarization is not a requirement for a Will to be valid in Kenya. However, your signature and the signatures of two independent witnesses are necessary. Notarization can add an extra layer of authenticity to the document but is not legally required.
Yes, you can change your Will at any time. This is known as a codicil. However, it’s important to ensure that any changes you make are properly executed and witnessed.
If you die without a Will, your assets will be distributed according to the Kenyan laws of intestacy. This means the law decides who inherits your assets, which might not align with your wishes and could potentially lead to family disputes.