A will written abroad, an estate in Kenya: Succession for Kenyans overseas

In brief

• A will signed in London, Dallas or Dubai can govern land in Kenya, because what matters is not where the will is made but whether it satisfies Kenyan law, which under the Law of Succession Act governs succession to all immovable property in Kenya whatever the owner’s domicile. The formalities are few and strict.
• Without a will, the Act distributes by formula. The surviving spouse takes the personal and household effects and a life interest in the rest, the children take what remains in equal shares, and the estate passes through a court process that cannot distribute capital assets until a grant has been confirmed, which ordinarily cannot happen before six months.
• A will only works if it agrees with the documents. The land register, the company’s register of members and any trust deed decide what is actually yours to give, and the commonest failure in diaspora estates is a will that bequeaths assets the documents place elsewhere.

This series has been about getting property in Kenya safely, from the power of attorney to the client account to the paperwork of eligibility and the tax on the rent. This closing piece is about keeping it, through the one transfer every owner eventually makes. For the Kenyan abroad the subject carries a particular edge, because the estate will be administered in a system the heirs may never have dealt with, in a country some of them may never have lived in, and the difference between an estate that passes in months and one that consumes a decade is almost always decided while the owner is alive and well. This article explains how a will made abroad takes effect over Kenyan assets, what the law does when there is no will, how a Kenyan succession cause is run when the heirs are overseas, and why the will must be read against the land and company documents before it is signed rather than after it is contested.

Which law governs, and why the will can be signed anywhere

The Law of Succession Act [link] answers the conflict question in its opening sections. Succession to immovable property in Kenya is governed by Kenyan law regardless of where the owner was domiciled at death, while movable property follows the law of the country of domicile. The flat in Kilimani and the shamba in Kiambu therefore pass under Kenyan law even if their owner spent forty years in Minnesota, and a will is effective for them if it satisfies the Act, wherever in the world it was signed. The formalities are short. The will must be in writing. The testator must sign it, or acknowledge a signature made for them, in a way that shows it is intended to take effect as a will. And it must be attested by two or more competent witnesses, adults of sound mind, each of whom saw the signature made or acknowledged and signed in the testator’s presence, though the witnesses need not be present at the same time. One trap deserves its own sentence, because it voids gifts rather than wills. A bequest to a person who witnessed the will, or to that witness’s spouse, is void unless at least two further independent witnesses attested, so the beneficiaries and their spouses stay out of the signing room, and two colleagues or neighbours abroad who take nothing under the will do the witnessing. When probate is later sought in Kenya, due execution is proved by the evidence of an attesting witness, ordinarily by affidavit, which a witness abroad can swear before a notary, so the choice of witnesses who can be found again is a practical matter as well as a legal one.

What the Act does when there is no will

Dying intestate does not make an estate lawless. It makes it formulaic, and the formula was not written with any particular family in mind. Where a spouse and children survive, the spouse takes the personal and household effects absolutely together with a life interest in the whole residue, a life interest which, as the Act stands, ends for a widow on remarriage, and on the death of the surviving spouse the residue passes to the children in equal shares. Where there is no surviving spouse the children take equally, and the Act makes separate provision for polygamous households, distributing among the houses according to the number of children in each. The machinery is as consequential as the formula. Someone must petition the High Court for letters of administration, the application is advertised and a waiting period runs, and the grant cannot ordinarily be confirmed, which is what permits distribution of capital assets, until six months have passed. Our article on governing the family business made the point for companies, and it holds for every asset. Intestacy hands the estate to a committee of heirs with equal votes and unequal interest, assembled by formula rather than by anyone’s intention, and a single page of properly witnessed writing is what prevents it.

Running a Kenyan succession cause from abroad

Distance complicates administration less than people fear, and differently than they expect. The heirs’ citizenship is usually the first worry and usually the smallest, because a child of a Kenyan citizen is a citizen by birth even when born abroad, as our article on dual citizenship and the order of operations explains, and even a genuinely non-citizen heir can inherit Kenyan land, taking any freehold as a ninety-nine year leasehold under the Constitution rather than being excluded. The real work is procedural. Consents, renunciations and affidavits from heirs abroad are signed before notaries and legalised in the way our article on signing Kenyan documents from abroad describes, courts increasingly accommodate remote attendance, and an advocate administers the cause in Nairobi while the family stays where life has planted it. One instrument deserves particular care. A grant of probate or administration obtained in another country has no effect on Kenyan assets by itself. The High Court can seal a grant made in a Commonwealth country, or in a country designated by notice, and the sealed grant then operates as if the Kenyan court had made it, while estates with grants from elsewhere need a fresh Kenyan grant. An executor in London holding an English grant should therefore plan on a Kenyan proceeding of one kind or the other, and build its timing into the administration.

Making the will agree with the documents

The most elegant will in the world disposes only of what its maker actually owns, and this is where diaspora estates fail. Land bought through a relative and still registered in the relative’s name is, on the register, the relative’s, as our article on land held through family sets out, and a will cannot bequeath what the testator never held. Land registered in joint proprietorship passes to the surviving proprietor outside the will altogether, which is sometimes exactly what spouses intend and sometimes a surprise. Shares in the family company move subject to the transmission and pre-emption provisions of the articles and any shareholders’ agreement, so a bequest the company documents forbid is a dispute rather than a gift. And assets settled on a trust are not estate assets at all, a distinction the Trust Administration Act has made more valuable for families who want Kenyan property held together across generations, as our article on that Act explains. The discipline before signing is therefore a reading exercise. Put the will beside the title, the register of members and the trust deed, and make them point the same way, because every inconsistency among them will one day be argued about by people who love each other less than they did at the funeral.

What happens next

This closes the series on transacting in Kenya from abroad, which runs from the power of attorney signed abroad through protecting the purchase money, the paperwork of eligibility and the tax on the diaspora landlord’s rent. For a will drawn or reviewed against your Kenyan assets, an estate to administer or a succession cause to run from wherever you are, the place to start is a conversation.

Frequently asked questions

Is a will I sign abroad valid for my property in Kenya?

Yes, if it satisfies Kenyan law. It must be in writing, signed by you, and attested by two or more competent adult witnesses who saw you sign or acknowledge the signature, and Kenyan law governs your immovable property in Kenya wherever you were domiciled. Keep beneficiaries and their spouses out of the witnessing, because a gift to an attesting witness is void unless two further independent witnesses signed.

What happens to my Kenyan property if I die without a will?

The Law of Succession Act distributes it by formula. Your spouse takes the personal and household effects and a life interest in the rest, and your children share what remains equally, through a court administration that cannot distribute capital assets before a grant is confirmed, ordinarily six months at the earliest. The formula knows nothing of your intentions, which is the case for writing the will.

Can my children inherit my Kenyan land if they hold foreign citizenship?

Almost always yes. A child of a Kenyan citizen is a Kenyan citizen by birth even when born abroad, and inherits as a citizen. An heir who is genuinely a non-citizen can still inherit, holding any freehold as a ninety-nine year leasehold under Article 65 of the Constitution.

I have a grant of probate from the UK. Does it cover the Kenyan assets?

Not by itself. A grant from a Commonwealth country can be sealed by the High Court of Kenya, after which it operates as if made here, and a grant from a non-designated country requires a fresh Kenyan grant. Either way, plan for a Kenyan proceeding before the local assets can move.

Should I make one will or separate wills for Kenya and the country I live in?

Separate wills, each confined to the assets in its own country, are often the cleaner arrangement, because each estate can be administered locally without waiting for the other. They must be drawn together with care so that neither revokes the other, which is a drafting exercise rather than a difficulty.

Peter Maina is a Partner of Peter Maina & Company Advocates. This article states the law as at 30 October 2026. It is general information, not legal advice. To have a will drawn or reviewed, a Kenyan estate administered or a succession cause run from abroad, reach out on e-mail peter@pmlaw.co.ke or WhatsApp +254 714 644 080.