Law Commentaries

What Really Makes Up a Deceased Person’s Estate?

A recent High Court ruling, In re Estate of Raphael Charles Makokha (Deceased) [2024] KEHC 12277 (KLR), sheds light on the complexities of estate administration and the importance of precise estate planning. This case serves as a critical reminder for anyone involved in probate or preparing for the future.

Key Lessons from the Ruling

The court’s decision highlighted several pivotal issues, including the dissolution of civil marriages, the emergence of a will during intestacy proceedings, and property transfers post-death. However, one principle stood out: before a grant of probate can be confirmed, the deceased’s assets must be accurately identified and verified.

In this case, the Judge refused to confirm the distribution of most of the estate because, apart from a single motor vehicle, none of the listed properties were registered in the deceased’s name. This underscores a vital truth: not everything a person “owned” during their lifetime forms part of their estate.

Not all assets are part of an estate. Understanding what qualifies is crucial for smooth estate administration.

What Doesn’t Form Part of an Estate?

Several types of assets may not be included in a deceased person’s estate, including:

  1. Jointly owned property: Passes directly to the surviving co-owner through the right of survivorship.
  2. Company shares: May be subject to shareholder agreements that dictate their fate upon death.
  3. Trust assets: Typically excluded as they are held in trust, not owned outright.
  4. Lifetime gifts (gifts inter vivos): Assets gifted during the deceased’s lifetime are not part of the estate.
  5. Nominated assets: Pensions or insurance policies with nominations often bypass wills or intestate succession.

Practical Takeaways

Whether you’re an executor, personal representative, or planning your own estate, the Makokha ruling offers actionable insights:

  1. For personal representatives: Before applying for probate or seeking confirmation of a grant, consult a legal professional to verify the nature and ownership of each asset. Missteps can delay or derail the process.
  2. For individuals planning their estate: A will is just the beginning. Effective estate planning requires a clear understanding of what you own, how it’s held, and how it will be transferred after your passing.

Take control of your legacy. Proper estate planning ensures your wishes are honored and your loved ones are spared unnecessary complications.

Adapted from: Mahnaaz Mohammed