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Post Reply: Role of the Public Trustee in Succession Matters

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	In Kenya, the administration of deceased persons’ estates is governed by a robust legal framework, primarily the Law of Succession Act (Cap 160) and, in specific circumstances, the Public Trustee Act (Cap 168). The Public Trustee plays a critical role in ensuring that estates are managed and distributed fairly when certain conditions are met. This article explores the circumstances under which the Public Trustee steps in, their responsibilities under the Public Trustee Act, and practical steps for working with them in estate administration.
The Public Trustee is a government office established under the Public Trustee Act (Cap 168) to administer estates of deceased persons in specific situations. The office operates under the Attorney General’s Office and is tasked with safeguarding the interests of beneficiaries, particularly in cases where there is no executor or administrator, or where the estate faces complexities that require impartial intervention. The Public Trustee acts as a neutral entity, ensuring that the estate is managed in accordance with the law and that the rightful beneficiaries receive their entitlements.
<h3 dir="ltr">When Does the Public Trustee Step In?</h3>
The Public Trustee’s involvement in succession matters is triggered under specific circumstances outlined in the Public Trustee Act (Cap 168) and related laws. Below are the primary scenarios where the Public Trustee assumes responsibility:
<h4 dir="ltr">1. Intestate Succession with No Administrator</h4>
When a person dies intestate (without a valid will) and no suitable person applies to administer the estate, the Public Trustee may step in. Under Section 6 of the Public Trustee Act, the Public Trustee is empowered to administer estates where:
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The deceased left no will, and no relative or creditor applies for a grant of letters of administration.
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The estate is at risk of mismanagement or waste due to the absence of a capable administrator.
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For example, if a deceased person’s family is unable to agree on who should administer the estate, or if the heirs are minors or incapacitated, the Public Trustee may intervene to protect the estate’s assets.
<h4 dir="ltr">2. Testate Succession with No Executor</h4>
In cases where the deceased left a valid will but no executor is willing or able to act, the Public Trustee may take over. This could occur if:
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The named executor renounces their role.
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The executor is deceased, incapacitated, or otherwise unavailable.
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The will does not name an executor.
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Under Section 7 of the Public Trustee Act, the Public Trustee can apply for a grant of probate or letters of administration with the will annexed to administer the estate according to the deceased’s wishes.
<h4 dir="ltr">3. Small Estates</h4>
The Public Trustee often handles small estates (those valued below a certain threshold, typically KSh 500,000, as per administrative guidelines). These estates may not justify the costs of private administration, and the Public Trustee provides an affordable and efficient solution. Under Section 8 of the Public Trustee Act, the Public Trustee may summarily administer such estates without the need for formal court proceedings, provided the estate is straightforward.
<h4 dir="ltr">4. Estates of Missing Persons</h4>
If a person is presumed dead (e.g., due to prolonged absence) but their death is not legally confirmed, the Public Trustee may manage their property under Section 12 of the Public Trustee Act. This ensures that the estate is preserved until the person’s status is clarified.
<h4 dir="ltr">5. Court Referral or Public Interest</h4>
The court may direct the Public Trustee to administer an estate in cases of disputes, fraud, or public interest. For instance:
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If beneficiaries suspect mismanagement by a private administrator, the court may revoke their grant and appoint the Public Trustee.
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In high-profile cases involving significant public assets or vulnerable beneficiaries, the Public Trustee may be tasked with administration to ensure transparency.
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<h4 dir="ltr">6. Trusts and Minors’ Interests</h4>
The Public Trustee also plays a role in managing trusts created for minors or incapacitated persons. Under Section 14 of the Public Trustee Act, the Public Trustee can act as a trustee or co-trustee to safeguard the interests of such beneficiaries until they are capable of managing their inheritance.
<h3 dir="ltr">Responsibilities of the Public Trustee</h3>
Once appointed, the Public Trustee assumes a range of duties to ensure proper estate administration. These responsibilities include:
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Identifying and Securing AssetsThe Public Trustee locates and safeguards the deceased’s assets, such as land, bank accounts, shares, or personal property. This may involve liaising with banks, land registries, or other institutions to freeze accounts or prevent unauthorized access.
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Paying Debts and LiabilitiesThe Public Trustee settles the deceased’s debts, taxes, and funeral expenses before distributing the estate. They advertise for creditors to come forward, as required under Section 29 of the Law of Succession Act, to ensure all legitimate claims are addressed.
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Distributing the EstateAfter settling liabilities, the Public Trustee distributes the estate to the rightful beneficiaries according to:
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The deceased’s will (in testate cases).
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The rules of intestacy under Part V of the Law of Succession Act (in intestate cases).
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Maintaining AccountsThe Public Trustee keeps detailed records of all transactions and provides periodic accounts to beneficiaries or the court, ensuring transparency.
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Resolving DisputesIn cases of disputes among beneficiaries, the Public Trustee acts as a neutral party, seeking court directions if necessary to resolve conflicts.
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Protecting Vulnerable BeneficiariesThe Public Trustee ensures that minors, persons with disabilities, or other vulnerable beneficiaries receive their share, often by setting up trusts or holding funds until the beneficiary is capable of managing them.
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<h3 dir="ltr">How to Work with the Public Trustee in Estate Administration</h3>
Engaging with the Public Trustee requires understanding their procedures and maintaining clear communication. Below are practical steps for working with the Public Trustee:
<h4 dir="ltr">Step 1: Report the Death</h4>
To initiate the process, the death of the deceased must be reported to the Public Trustee’s office. This can be done by:
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Visiting the Public Trustee’s office in Nairobi (at Sheria House) or regional offices in Mombasa, Kisumu, or Eldoret.
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Submitting a death certificate, identification documents of the deceased, and details of the estate (e.g., assets and liabilities).
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If the estate falls under the Public Trustee’s jurisdiction (e.g., small estate or no administrator), they will take over from this point.
<h4 dir="ltr">Step 2: Provide Supporting Documents</h4>
The Public Trustee will require documents to verify the estate and beneficiaries, including:
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Death certificate.
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Identification documents of beneficiaries (e.g., ID cards, birth certificates).
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Will (if any).
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List of assets (e.g., title deeds, bank statements, share certificates).
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Chief’s letter or affidavit confirming beneficiaries (in intestate cases).
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Ensure all documents are authentic to avoid delays.
<h4 dir="ltr">Step 3: Pay Administration Fees</h4>
The Public Trustee charges fees for their services, as outlined in the Public Trustee (Fees) Rules. These fees are typically a percentage of the estate’s value (e.g., 4% for estates below KSh 500,000). Confirm the exact fees with the Public Trustee’s office, as they may vary based on the estate’s complexity.
<h4 dir="ltr">Step 4: Cooperate During Administration</h4>
Beneficiaries should:
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Respond promptly to requests for information or clarification.
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Attend meetings or court hearings if required.
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Notify the Public Trustee of any disputes or concerns.
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The Public Trustee may take several months to complete administration, depending on the estate’s size, complexity, and any disputes.
<h4 dir="ltr">Step 5: Receive Distribution</h4>
Once the estate is fully administered, the Public Trustee will distribute the assets or funds to the beneficiaries. For minors or incapacitated persons, the Public Trustee may hold the share in trust until they are eligible to receive it.
<h3 dir="ltr">Advantages of Involving the Public Trustee</h3>
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Impartiality: The Public Trustee is a neutral entity, reducing the risk of bias or favoritism in estate administration.
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Affordability: For small estates, the Public Trustee’s fees are often lower than hiring private advocates or administrators.
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Expertise: The Public Trustee has experience handling complex estates, including those with disputes or vulnerable beneficiaries.
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Legal Protection: The Public Trustee operates under strict legal oversight, ensuring compliance with the law.
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<h4 dir="ltr">Challenges of Working with the Public Trustee</h4>
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Delays: Due to the high volume of cases, the Public Trustee’s office may take longer to administer estates compared to private administrators.
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Limited Accessibility: The Public Trustee has offices in only a few locations, which may inconvenience beneficiaries in remote areas.
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Bureaucracy: The process involves significant paperwork and adherence to government procedures, which can be cumbersome.
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Restricted Discretion: The Public Trustee strictly follows the law, which may limit flexibility in addressing unique family circumstances.
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<h4 dir="ltr">Tips for a Smooth Process</h4>
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Seek Legal Advice: While the Public Trustee handles administration, consulting an advocate can help clarify your rights and obligations.
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Organize Documents Early: Gather all required documents in advance to avoid delays.
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Communicate Clearly: Maintain regular contact with the Public Trustee and respond promptly to their requests.
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Resolve Disputes Amicably: If conflicts arise among beneficiaries, consider mediation to avoid prolonged court battles.
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Monitor Progress: Periodically check on the status of the administration to ensure timely completion.
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<h3 dir="ltr">Conclusion</h3>
The Public Trustee plays an indispensable role in Kenyan succession matters, stepping in to administer estates when no executor or administrator is available, or when the estate requires impartial management. By understanding when and how the Public Trustee operates under the Public Trustee Act (Cap 168), beneficiaries can navigate the process more effectively. While the Public Trustee offers affordability and expertise, challenges such as delays and bureaucracy may arise. Engaging legal professionals can help streamline the process and protect your interests.
For personalized guidance in succession matters, contact us today at +254 716 708 104 or info@lawguide.co.ke for expert advice.
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