Grant of Probate in Kenya: What Happens When Someone Dies With a Will?

If someone dies in Kenya leaving a valid written will, the family does not simply divide or transfer the deceased’s property using the will.

The executor named in the will ordinarily has to apply to court for a grant of probate.

Probate is the court process through which the will is formally proved and the executor obtains legal authority to administer the deceased’s estate. The Law of Succession Act defines probate as the court’s certificate that the will has been proved to be valid, together with a grant of representation to the executor.

The process generally involves filing the will and petition, publication of the application in the Kenya Gazette, allowing time for objections, issuance of the grant and, ordinarily, a later application to confirm the grant before the capital assets of the estate are distributed.

Grant of probate at a glance

Question	Position
Who applies?	Normally the executor named in the will
Main petition	Form 78, Petition for Probate of Written Will
Supporting affidavit	Form 3
Is the original will required?	Yes, ordinarily the original written will is lodged with the court
Must the application be gazetted?	Yes
Objection period	At least 30 days from publication
When can the grant be confirmed?	Ordinarily after 6 months from issuance of the grant
Can land be distributed immediately after probate is issued?	No. Capital distribution ordinarily requires confirmation
What if the named executor cannot or will not act?	A grant of letters of administration with the will annexed may be required instead

The Probate and Administration Rules expressly prescribe Form 78 for a petition for probate of a written will, supported by an affidavit in Form 3.

What is a grant of probate?

A will tells you what the deceased wanted to happen to their estate.

A grant of probate gives the executor legal authority to implement those wishes.

Section 53 of the Law of Succession Act allows the court, where a deceased person is proved to have left a valid will, to grant:

1. probate to one or more executors named in the will, or
2. letters of administration with the will annexed where there is no executor able or willing to prove the will.

This distinction is important.

A person does not obtain a grant of probate merely because they are a beneficiary, child or spouse of the deceased. Probate is ordinarily granted to the executor appointed by the deceased.

A will does not avoid succession proceedings

One of the most common misunderstandings about wills is that once a person dies, the beneficiaries simply present the will to the bank, land registry or company holding the deceased’s assets and receive the property.

That is generally not how it works.

The executor normally needs a grant of representation before they can formally administer the estate.

Once probate is granted, section 79 of the Law of Succession Act provides that the property of the deceased vests in the personal representative for purposes of administration.

The will therefore determines who should ultimately receive the property, while the grant gives the executor the legal authority necessary to administer it.

Who is an executor?

An executor is the person the deceased appointed in the will to administer the estate.

Section 6 of the Law of Succession Act expressly allows a person making a will to appoint one or more executors.

The executor’s role can include:

• identifying and securing estate property;
• collecting money owed to the deceased;
• identifying and paying legitimate debts;
• dealing with banks, companies and registries;
• obtaining probate;
• accounting for the estate;
• applying for confirmation of the grant; and
• transferring the remaining estate to the beneficiaries in accordance with the will.

An executor is therefore not simply a beneficiary or family representative. The executor assumes legal responsibilities to the estate and to those entitled under the will.

What makes a written will valid in Kenya?

Obtaining probate begins with determining whether the document presented as the will meets the basic legal requirements.

Under section 5 of the Law of Succession Act, a person who is of sound mind and not a minor may dispose of their free property by will. A testator is presumed to have been of sound mind unless the contrary is proved.

For a written will, section 11 requires, among other things:

• the testator’s signature or mark, or a signature made by another person in the testator’s presence and at their direction;
• the signature to have been intended to give effect to the document as a will; and
• attestation by at least two competent witnesses, each signing in the presence of the testator.

A will can also be invalidated if its making was caused by fraud, coercion, undue pressure that took away the testator’s free agency, or mistake. Section 7 expressly makes such a will, or the affected part of it, void.

Does the court automatically accept the will?

Not necessarily.

An uncontested will that appears properly executed will usually present a much simpler probate process. But the court still has power to investigate questions concerning:

• execution of the will;
• the testator’s capacity;
• whether the document produced is actually the last will;
• the identity of the deceased or executor;
• allegations of forgery, coercion or fraud;
• a later will or codicil; and
• claims by dependants.

Section 70 of the Law of Succession Act allows the court, before making a grant, to require further evidence concerning the execution or contents of the will and other matters requiring investigation.

Documents needed to apply for probate

The exact filing bundle can depend on the circumstances of the estate and the court registry, but the core documents and information ordinarily include:

• the original written will, including any codicil;
• the deceased’s death certificate or other acceptable evidence of death;
• Form 78, the petition for probate;
• the supporting affidavit in Form 3;
• details of the executor or executors;
• the deceased’s date and place of death and domicile;
• a full inventory of the known assets and liabilities of the estate; and
• the estimated value of those assets and liabilities.

Rule 7 expressly requires the application to disclose the deceased’s identity, death, domicile, whether they died testate, a full inventory of assets and liabilities, the executor’s details and the capacity in which the applicant applies. The death certificate or other written evidence of death must also be exhibited.

Where probate of a written will is sought, Rule 7(5) requires the original will to be lodged when the petition is filed unless the original is unavailable in circumstances recognised by law.

Where is the succession case filed?

The High Court has jurisdiction over succession matters.

Magistrates’ courts also have jurisdiction under section 48 of the Law of Succession Act, subject to their statutory pecuniary limits. The current limits under section 7 of the Magistrates’ Courts Act are:

Magistrate	Maximum pecuniary jurisdiction
Chief Magistrate	KES 20 million
Senior Principal Magistrate	KES 15 million
Principal Magistrate	KES 10 million
Senior Resident Magistrate	KES 7 million
Resident Magistrate	KES 5 million

Recent High Court authority continues to apply these limits to succession proceedings.

This is important because some older versions of the Probate and Administration Rules still contain an outdated reference to KES 100,000. Section 48 of the Law of Succession Act was subsequently amended by the Magistrates’ Courts Act, 2015 so that magistrates’ succession jurisdiction now tracks the limits in section 7 of that Act.

The estimated gross value of the estate should therefore be taken seriously when deciding where to file.

How the probate process works

1. Identify the original will

The first step is usually to obtain and examine the original will.

Confirm:

• whether the document appoints an executor;
• whether all pages and signatures are present;
• whether there are at least two attesting witnesses;
• whether there is a later will or codicil;
• whether any executor has died; and
• whether the will appears to dispose of the whole estate.

If the original will is lost or unavailable, do not simply treat the deceased as intestate. The Law of Succession Act provides for limited probate of a copy or draft in certain circumstances where the original has been lost, mislaid or accidentally destroyed.

2. Identify and value the estate

Prepare a complete inventory of the deceased’s property and liabilities.

This may include:

• land and apartments;
• bank accounts;
• shares;
• SACCO interests;
• vehicles;
• business interests;
• insurance or other benefits payable to the estate;
• debts owed to the deceased; and
• debts and liabilities owed by the deceased.

The estate value also determines whether a Magistrate’s Court has jurisdiction or the matter should be dealt with in the High Court.

3. File the petition for probate

The named executor petitions the appropriate court using Form 78, ordinarily supported by Form 3 and the required supporting documents.

Form 78 specifically requires the petitioner to state that they are an executor named in the will and undertake to faithfully administer the estate and account for it when required.

4. Principal Registry check

Succession applications are checked against the national Principal Probate and Administration Registry.

The Principal Registry issues Form 30, confirming that no other application for a grant concerning the same estate has already been made or is pending.

This helps prevent two different courts from issuing competing grants over the same estate.

5. Publication in the Kenya Gazette

Before an ordinary grant of probate is issued, notice of the application must be published.

Section 67 of the Law of Succession Act prohibits the making of an ordinary grant until notice has been published inviting objections for a period of not less than 30 days.

Under the Probate and Administration Rules, the notice is issued in Form 60. The Judiciary’s Principal Registry currently coordinates the publication of probate applications in the Kenya Gazette and continues to publish dedicated probate Gazette issues.

6. Wait for objections

Any person wishing to challenge the proposed grant may lodge an objection within the period specified in the notice.

An objection might concern:

• whether the document is genuinely the deceased’s will;
• improper execution;
• existence of a later will;
• the applicant’s entitlement to probate; or
• some other material matter requiring investigation.

Rule 17 provides for objections in Forms 76 or 77. Form 77 is specifically intended for an objection based on the alleged will not having been duly executed.

If a substantive objection and cross-application are filed, the matter can become a contested succession proceeding requiring directions, evidence and determination by the court.

7. Grant of probate is issued

If the objection period expires without a sustainable objection and the court is satisfied with the application, the court can issue the grant of probate.

The court may nevertheless ask questions or require additional evidence before doing so. The Probate and Administration Rules expressly provide that a grant should not be made until any inquiries required by the court have been answered satisfactorily.

What can an executor do after probate is issued?

The executor becomes the deceased’s personal representative for purposes of the grant.

Sections 79, 82 and 83 give personal representatives substantial powers and responsibilities, including collecting estate property, recovering debts due to the deceased, paying administration expenses and debts and protecting estate assets.

However, receiving probate is not the same as completing the succession case.

The executor generally cannot simply distribute the capital assets immediately.

Section 55 states that a grant does not confer authority to distribute the capital assets of the estate until the grant has been confirmed. Section 82 also expressly prohibits the sale of immovable property before confirmation of the grant.

This distinction matters particularly where the estate contains land.

Grant of probate versus confirmation of grant

These are two different stages.

Grant of probate

The initial grant:

• recognises the will;
• recognises the executor;
• gives the executor authority to administer the estate; and
• allows the executor to begin collecting, protecting and dealing with estate affairs.

Confirmation of grant

Confirmation authorises the executor to move from administration to final distribution of capital assets in accordance with the will and the law.

Under section 71, the executor ordinarily applies for confirmation after six months from the date the grant was issued, although the court can permit earlier confirmation in the circumstances specified by the Act.

Rule 40 requires the confirmation application to be made by Summons for Confirmation of Grant in Form 108, supported in a testate estate by the affidavit prescribed in Form 8.

The statutory structure therefore contains:

30-day Gazette objection period → issue of probate → ordinarily six months → confirmation → final distribution.

The practical duration will usually be longer because filing, gazettement, registry processing, court dates, asset identification and any objections all take additional time.

Does every beneficiary have to consent before probate can be issued?

Not in the same way as an intestate succession cause.

The deceased has already appointed the executor through the will. The Probate and Administration Rules therefore do not impose the same hierarchy-and-consent procedure that applies where the court must choose an administrator in an intestate estate.

However, beneficiaries and other interested persons retain the right to object to the grant, challenge the will or raise other legitimate claims during the succession proceedings.

A lack of unanimous family agreement therefore does not automatically prevent the named executor from applying for probate.

What happens if there are several executors?

A will can appoint more than one executor.

Section 60 of the Law of Succession Act allows probate to be granted to several executors either simultaneously or at different times.

Where only some of the executors initially apply, another named executor who has not renounced probate may subsequently apply to be joined to the grant.

The Probate and Administration Rules also limit a single grant to a maximum of four personal representatives.

What if the executor does not want to act?

An executor can renounce executorship.

Section 59 provides that an executor may renounce either before the court or in writing. Once an executor has renounced executorship, they are barred from later applying for probate of that will.

The Probate and Administration Rules provide prescribed renunciation forms.

This should therefore not be treated as an informal decision. An executor considering renunciation should understand its effect before signing.

What if the executor refuses to apply for probate?

The family cannot simply ignore the executor’s appointment and appoint someone else.

Where a person has been appointed executor but has neither obtained probate nor renounced, succession law provides a citation procedure through which an interested person can require the executor to accept or refuse the grant, or otherwise take steps allowing another form of representation to be pursued.

The Probate and Administration Rules specifically provide for citations to accept, refuse or take a grant.

Where there is ultimately no proving executor, section 53 permits the court to issue letters of administration with the will annexed instead.

Probate versus letters of administration with the will annexed

These are commonly confused.

Grant of probate

Used where:

• there is a valid will; and
• an executor appointed in that will is proving it and taking responsibility for the estate.

Letters of administration with the will annexed

Used where there is a valid will but there is no executor able or willing to take probate, for example because the executor:

• predeceased the testator;
• has died before taking the grant;
• has renounced;
• cannot act; or
• there is otherwise no proving executor.

The will still governs the distribution of the estate. What changes is who receives authority from the court to administer it.

Can someone challenge a will after probate proceedings start?

Yes.

There are two conceptually different kinds of dispute.

1. Challenging the validity of the will

A person may allege, for example, that:

• the signature was forged;
• there were not two proper witnesses;
• the deceased lacked testamentary capacity;
• the deceased was coerced;
• the document had been revoked; or
• another later will exists.

If the court finds that the alleged will is not valid, the estate may instead be administered under an earlier valid will or, if there is none, under the rules of intestacy.

2. Asking for reasonable provision despite a valid will

A person can accept that the will is valid but argue that the deceased did not make reasonable provision for them as a dependant.

Section 26 of the Law of Succession Act permits the court, on application by or on behalf of a dependant, to order reasonable provision from the estate despite what the will says.

This is particularly important because a valid will does not make testamentary freedom absolute.

The Court of Appeal reaffirmed in 2025 that a child omitted from a valid will can still invoke section 26 and ask the court for reasonable provision, with the court then considering the statutory factors in sections 28 and 29.

Omission from a will therefore does not automatically make the will invalid. It may instead create a separate dependency claim.

What if the will only deals with some of the property?

A person can die partly testate and partly intestate.

For example, a will might distribute a house and shares but say nothing about another parcel of land subsequently acquired by the deceased.

Section 53 recognises this possibility. Probate may be granted in respect of property governed by the will, while letters of administration may be required for the part of the estate falling into intestacy.

This is one reason wills should contain a properly drafted residuary clause dealing with property not specifically listed elsewhere in the will.

What if the original will cannot be found?

A missing original does not always mean that probate is impossible.

The Fifth Schedule to the Law of Succession Act permits limited probate of a copy or draft where, for example, the will was lost or mislaid after the testator’s death or accidentally destroyed rather than deliberately revoked.

The applicant will need evidence explaining what happened to the original and satisfying the court as to the document being relied upon.

A missing original is therefore a matter requiring evidence, not an automatic conversion of the estate into intestacy.

Duties of an executor after obtaining probate

Being named executor is not merely an honour conferred by the deceased.

It carries statutory duties.

Section 83 requires a personal representative, among other things, to:

• meet reasonable funeral expenses from the estate;
• collect the deceased’s free property;
• pay reasonable administration expenses;
• identify and pay the deceased’s debts;
• produce an inventory and account;
• distribute or retain assets according to the will and the law; and
• complete the administration and account to court within the periods prescribed by law, subject to any extension allowed by the court.

An executor should therefore keep proper records of:

• money received;
• expenses paid;
• debts settled;
• assets sold or transferred;
• income received by the estate; and
• distributions made to beneficiaries.

Can a grant of probate be revoked?

Yes.

A grant is not immune merely because the deceased left a will.

Section 76 of the Law of Succession Act allows a grant to be revoked or annulled where, among other grounds:

• the proceedings used to obtain it were substantially defective;
• it was obtained through fraud or concealment of a material fact;
• it depended on a materially untrue allegation;
• the personal representative fails to proceed diligently with administration;
• the representative fails to apply for confirmation after due notice; or
• the grant has become useless or inoperative because of later circumstances.

Disclosure at the petition stage is therefore important even where the executor believes the will is straightforward.

Common mistakes in probate matters

1. Assuming the will transfers the property automatically

It does not.

The will identifies the deceased’s wishes. The executor ordinarily still needs probate and, ultimately, confirmation before completing distribution of capital assets.

2. Filing for letters of administration intestate despite the existence of a will

If a valid will exists, the estate should not simply be presented as intestate.

Kenyan courts have treated obtaining an intestate grant where the deceased actually died testate as a defect capable of supporting revocation of the grant.

3. Ignoring the executor named in the will

A beneficiary cannot ordinarily bypass the named executor simply because the family prefers someone else.

The executor must act, renounce, die, be cited or otherwise fall within circumstances permitting another grant.

4. Distributing land immediately after probate is issued

A grant of probate is not automatically a licence to distribute or sell immovable property.

Confirmation ordinarily comes first. Section 82 expressly prevents the personal representative from selling immovable property before confirmation.

5. Treating an omitted child or dependant as having no rights

A valid will does not necessarily end the inquiry.

A dependant who has not been reasonably provided for may apply under section 26.

6. Leaving assets out of the petition

The probate application requires a proper inventory.

Assets discovered later can create additional procedural work and, where the omission was deliberate or material, can create more serious problems.

7. Failing to identify liabilities before distributing the estate

Beneficiaries receive the estate after legitimate debts and administration expenses have been dealt with.

An executor who distributes everything without dealing with known liabilities may create personal and estate-level problems.

Frequently asked questions

Do I need probate if there is a will?

Usually, yes, where the deceased left property requiring formal administration or transfer.

A will determines the deceased’s intentions, but the grant gives the executor formal authority to administer the estate.

Who applies for probate?

Ordinarily, the executor appointed in the will.

Can a beneficiary apply for probate instead?

Not merely because they are a beneficiary.

If they are also a named executor, they can apply in that capacity. If there is no proving executor, the appropriate procedure may instead be an application for letters of administration with the will annexed.

How long does probate take in Kenya?

There is no single guaranteed timeline.

The statutory process alone requires an objection period of at least 30 days after publication of the application. After the grant is issued, confirmation ordinarily follows after six months, unless the court permits earlier confirmation under section 71.

Filing, gazettement, court scheduling, queries from the registry, objections and the complexity of the estate can add further time.

Can the executor sell land before confirmation?

No. Section 82 expressly prohibits the sale of immovable property before confirmation of the grant.

Does a will need to be registered before death?

Registration is not what makes an ordinary written will valid.

Its validity principally depends on testamentary capacity, proper execution and compliance with the Law of Succession Act.

The Probate and Administration Rules do, however, provide a facility at the Principal Probate Registry where a living testator may deposit a will for safekeeping.

What happens if the executor has died?

If another executor named in the will survives and is willing to act, that executor may seek probate.

If there is no proving executor, the court may grant letters of administration with the will annexed to an appropriate person.

Can an executor also be a beneficiary?

Yes. Appointment as executor and entitlement as beneficiary are separate questions. The fact that an executor also benefits under the will does not by itself prevent them from acting as executor.

What if the beneficiaries disagree with the will?

Disagreement alone does not invalidate a will.

A person challenging it needs a recognised legal basis, such as improper execution, lack of capacity, fraud, coercion, revocation or another matter affecting validity.

A dependant who accepts the will as valid but was inadequately provided for may instead consider an application for reasonable provision under section 26.

The practical rule

Where someone dies leaving a will, start with four questions:

Is the will valid? Who is the executor? What property and liabilities make up the estate? Does the will deal with all of it?

Those answers determine the correct probate process.

The existence of a will can make the eventual distribution substantially clearer, but it does not remove the need for careful estate administration, gazettement, probate and, in the ordinary case, confirmation of the grant before final distribution.

This guide provides general information on Kenyan succession law and procedure as at 18 September 2026. It is not legal advice on a particular estate. Probate requirements can vary depending on the will, estate value, dependants, location and whether the proceedings are contested.