Writing A Will In Kenya
A Will is a legal document that expresses a person’s wishes on how their assets and property will be distributed after their death. It can also be used to appoint an executor, a guardian (for minor children) and a number of other important decisions. Having a Will can give you peace of mind because it ensures that your wishes are respected and honored in the case of your passing.
Why you need a Will
If someone dies without a Will, their estate will be divided according to the laws of intestacy (intestacy is the state of dying without a will), and these won’t necessarily take into account their wishes or the needs of their beneficiaries. In Kenya, the laws of Intestacy give priority to the spouse of the deceased and their children. This means that cohabiting partners, step children or adopted children can have their right to inherit from the intestate (the one who has passed on without leaving a valid Will) challenged in Court.
When it comes to debts, taxes or charitable donations, leaving these to the laws of intestacy may not be the most efficient way of dealing with them. The wishes of the intestate may not be taken into account, their estate could be reduced through wastage, and the beneficiaries could be burdened with unnecessary costs and complications. Having a Will is the best way to avoid these problems. A Will ensures that the intestate’s estate is distributed according to their wishes. It defines who will inherit their assets and property and exactly how much they will receive. The intestate can choose and appoint an executor they trust to handle their affairs and carry out the instructions in the Will. They can appoint a guardian for their minor children and other dependents, ensuring that their welfare and education are taken care of. Things like instructions for the funeral, charitable donations, trusts and other special wishes can be included in the Will. Having a Will removes ambiguity, therefore reducing the amount of disputes between family members. It makes the process of settling the estate easier and quicker.
How to write a Will
You can write a Will for yourself if you want to. There are templates and software programs available to help guide the process. However, in order to ensure that the Will is legally valid and complies with Kenyan laws, it is much better to involve a lawyer in the process. Here are some things to know and do when writing a Will:
- Make a list of your assets and property. This means bank accounts, investments, real estate, vehicles, jewelry and personal belongings. Estimate their value and decide who you want to inherit them. You can also specify how you want them to be used. For example someone can specify that they want a specific portion of their estate to be used for education purposes only. Or to fund a particular charity.
- Make a list of your liabilities, such as loans, mortgages, credit cards and taxes. Decide how you want them to be paid off, and who will be responsible for doing this. You can actually specify who will inherit any remaining debts or assets after they are paid off.
- Choose and appoint an executor - someone who will be in charge of administering the estate, and ensuring that the instructions in the Will are carried out. You can also appoint a backup executor in case the first one is unable to or unwilling to act. If there are any trusts, then a trustee can be appointed to manage them. A guardian (and a backup) can also be appointed to specifically care for and look after minor children and other dependents.
- The Will should be written in clear and simple language. This is to avoid any ambiguity or contradiction. Some people use templates or software, but the best thing to do is to hire a lawyer to draft it.
- You can include a letter of wishes, which is a separate document that expresses personal preferences and requests, such as instructions for the funeral. It is not a legally binding document, so the executor can choose whether or not to follow it.
- Sign and date the Will in front of two witnesses. These witnesses must not be beneficiaries or spouses to the beneficiaries in the Will. They must also sign and date the Will in your presence and in each other’s presence. It is good practice to have the Will notarized by a lawyer or a public notary, who will verify your identity and signature. This will help prevent any challenges or disputes over the Will’s validity.
- Have the Will stored in a safe and accessible place, such as in a bank or with a lawyer’s office, or even in a trusted friend’s house. You should inform your executor, beneficiaries, family and friends about the Will and where it is stored.
You can and should review the Will regularly, especially when there are changes in your life, such as marriage, divorce, birth, death or relocation.
The points above are a general guideline just to give an idea of what goes into writing a Will. This is one of the most important things you can do for yourself and your loved ones, so the prudent thing to do is contact a lawyer to help you through the process.
As we have seen, writing a Will can help you avoid any legal problems and family conflict. It makes the process of settling your estate easier and faster and it will give you peace of mind because you will know that your legacy will be respected and honored. There is really no good reason why you shouldn’t have one.