Where there’s no will, there’s still a way

Joint ownership, gifts and nomination are various ways one can share there wealth before death.

Harriet James  @harriet86jim

Inheritance disputes continue to be the main factor breaking families according to statistics by the Kenya National Bureau of Statistics (KNBS) after witchcraft and religious grievances. 

Approximately 26.2 per cent of all households in the country have in one way or another fought about succession at some point in time. 

A 2019 Enwealth’s research, which was jointly undertaken by the Institute of Human Resource and Strathmore University showed that 40 per cent of adults depend on the next of kin nominations and that six out of every 10 people in Kenya have not written a will, which has exposed their spouses and children to a troubled life after their death. 

Estate planning

Speaking in a Facebook live session on estate planning and wills, family Lawyer Judith Thongori noted this gap and talked about the various ways that people can distribute their inheritance.

According to her, while there is no guarantee that there won’t be disputes, estate planning is a sustainable way of ensuring that a person’s plans are effected once a person dies.

Estate planning is the process of preparation for the distribution and  management of individual asset base in the event of incapacitation or death. 

One of the mode of estate planning that she proposes is joint ownership— where a person can register a property in their name plus the name of the child or party that they desire to inherit the property.

“When you die, the other person will be able to inherit the property automatically and there will be no need for you to pay a lawyer for the services.

The only thing required for the beneficiary is that they need to prove that the person has passed away,” she explained

When it comes to couples, no stamp duty is paid when a spouse is including their partner as owner to the property. 

Gift inter vivos is another way of administering an estate. In this case, a person can decide during their lifetime to transfer their property to their beneficiary as a gift.

This is the best way to check out how the person you intend to leave your property will look after it once you are gone. It gives you complete control over the distribution of wealth. 

Another mode of gift in contemplation of death which is mostly done with movable property like a laptop, a phone, TV set, fridge, anything that’s not land.

Many people don’t know that such minor things should be included in wills and one can give out such items to the beneficiary as a gift once death occurs. 

Nomination is another way of estate planning, which applies mostly in life insurance. In this case, someone nominates their beneficiary upon dying. 

“Even if you forget to indicate in the will that they are the beneficiaries, it will still be effected once the person dies,” says Thongori.

Exploring the will

When it comes to the will, which is the most popular way of administering the estate, Thongori advises people to update their will upon marriage, should they write it when they are single or without kids.

Law of Succession Act cap 160 clearly stipulates the set of beneficiaries where the wealth will be distributed equally to.

This includes your spouse and children, in the will whether they were maintained by you or not, the law will intervene on their behalf and give them a portion of your wealth. 

“But should you indicate why you are not including them in the will, maybe because you have bequeathed them another property, one should ensure that they indicate the reason why they have not made provisions for them in the will,” she notes 

There are two types of will; spoken and written. Research indicates that 20 per cent of Kenyans with wealth make verbal declarations on their wishes while five per cent confide in one family member as a way of formalising their succession plan.

Thongori advises that when it comes to spoken wills one should know that they only last for a period of three months except when you are in active service such as working in the army. 

“A spoken will cannot withstand against a written will. If there are any contentions between these two types of will, the written one will stand,” she says 

Another thing to note is that a person should ensure that they include a witness in the process who should not be a beneficiary in the will.

This is because if there arises any disputes, the law will not recognise them. In addition, one should seal all the loopholes regarding property as when it comes to divorce, former spouses can contest the will, especially if there was no agreement on separation of property.

And when it comes to joint ownerships incase of business partnerships, one should understand that the winner takes it all and that none of your dependents can lay claim of your share.

However, to safeguard this, one can register their share as a trusteeship so that your beneficiaries also gain.

In addition, parents who have children below 18 years should ensure that they nominate guardians to take care of their children upon their death. 

“Choose an executor who knows you well and has your interests to carry out your wishes. The best place to keep your documents is in the bank,” she says in conclusion.