Introduction
Death is one of life’s few certainties, yet many Kenyans pass away without a formal estate plan. The consequences are often borne by surviving family members through competing claims, prolonged court proceedings, and assets tied up in probate. The question is not whether to plan, but how best to do so.
Kenyan law recognises two principal estate planning tools: wills and trusts. While both facilitate the transfer and management of assets, they serve different purposes and offer distinct legal and practical advantages. The appropriate instrument depends on an individual’s circumstances and estate planning objectives.
This article examines the legal framework governing wills and trusts in Kenya, compares their key features, and considers whether trusts can provide greater protection against probate disputes.
The Legal Landscape: Wills and Trusts Under Kenyan Law
Wills in Kenya are primarily governed by the Law of Succession Act (Cap. 160), Laws of Kenya (the LSA), and the Probate and Administration Rules (LN 104/1980) (the P&A Rules). Under Section 5 of the LSA, any person aged eighteen years or older and of sound mind is capable of making a will. Section 11 requires a will to be in writing, signed by the testator (or another person at the testator’s direction and in their presence), and witnessed by at least two competent witnesses.
The LSA governs both testate and intestate estates. It applies to immovable property in Kenya regardless of the deceased’s domicile, while movable property is governed by the law of the deceased’s domicile at death. Muslim estates are distributed in accordance with Islamic law, subject to the administrative provisions of the LSA where they do not conflict with Islamic principles.
Trusts are principally governed by the Trustees Act (Cap. 167) (the TA), the Trustee (Perpetual Succession) Act (Cap. 164) (the TPSA), and equitable principles of common law. A trust is a legal arrangement in which a settlor or founder (the person who creates a trust) transfers property to trustees to hold and manage for the benefit of beneficiaries or another lawful purpose. It is created by a trust deed, which defines the trust property, beneficiaries, and the trustees’ powers and duties.
A will takes effect only upon the testator’s death and remains re vocable during their lifetime. By contrast, a trust may be created during the settlor’s lifetime (an inter vivos or living trust) or by will (a testamentary trust).
The key distinction is that a living trust takes effect immediately and generally avoids probate. In contrast, a will must be admitted to probate by the Court before it can be implemented. This affects the speed and efficacy of asset distribution and management, the confidentiality of wealth arrangements, and the estate’s exposure to litigation.
Trusts vs Wills
The choice between a will and a trust is not binary. Many sophisticated estate plans in Kenya use both instruments: a trust to hold principal assets during the settlor’s lifetime, and a will to dispose of residual assets, appoint guardians for minor children, and transfer after-acquired property into the trust upon death. That said, several considerations guide the choice of which instrument should anchor a particular estate plan.
Efficiency & Continuity: A will takes effect only after the court issues a grant of representation under the LSA and P&A Rules. Probate proceedings in Kenya can be lengthy, especially where there are disputes amongst the beneficiaries. Illustratively, In the Matter of the Estate of Mbiyu Koinange (Deceased), Succession Cause No. 527 of 1981, demonstrates how succession disputes may remain before the court for decades. In contrast, a living trust, having vested legal ownership in trustees before the death of the settlor, can begin or continue distribution to beneficiaries without reference to the court.
Privacy: A will admitted to probate becomes a public court record. The estate, beneficiaries, and specific bequests are disclosed in proceedings accessible to third parties. Under Rules 50-52 of the P&A Rules, each registry must maintain a Wills Register recording key details of every will, including the testator’s name, cause number, se rial number of the will, date of filing and grant, and date of confirma tion where applicable. Original wills lodged in support of probate or letters of administration with the will annexed are retained as part of the court record in accordance with the P&A Rules.
By contrast, a trust deed is a private agreement between the settlor and the trustee. Where trustees are incorporated under the TPSA, the terms of the trust are not publicly disclosed. Accordingly, trust deeds generally remain confidential except where disclosure is required by litigation, tax regimes, or other regulatory obligations.
Vulnerability Planning: A will has no legal effect during the testator’s lifetime and therefore provides no mechanism for managing assets in the event of incapacity, increasing the risk that they may be dissipated, disputed, or mismanaged. By contrast, a living trust may provide for successor trustees to assume control upon the settlor’s incapacity, ensuring continuity in the management of trust assets without court intervention. Trusts are also well suited for protecting vulnerable beneficiaries, including minors, the elderly, and persons with disabilities, making them particularly valuable for long-term estate planning.
Cost and Complexity: A will is generally simpler and less expensive to establish than a trust. A trust requires a professionally drafted trust deed, the appointment of trustees, the transfer of assets into the trust (which may include conveyancing of real property, execution of share transfer forms, and endorsement of insurance and investment policies), and ongoing trust administration costs. While these upfront costs may be substantial, they must be balanced against the expense, delay, and litigation risks associated with probate proceedings. For high-value or complex estates, the long-term benefits of a trust often outweigh its initial costs.
Flexibility and Control: Under sections 12 and 17-21 of the LSA, a will may be revoked, amended by a codicil, or revived during the testator’s lifetime. Similarly, a revocable living trust allows the settlor to amend or revoke its terms. However, irrevocable trusts commonly used for asset protection or tax planning limit the settlor’s ability to reclaim transferred properties. Although this enhances asset protection, it requires the settlor to relinquish a degree of control.
Type of Asset: Finally, the nature of an individual’s assets may determine the most appropriate planning instrument. Land may only form part of a trust if transferred to the trust during the settlor’s lifetime, while company shares require appropriate structuring to ensure an effective transfer into the trust. Certain assets, however, pass outside the estate altogether and are therefore not governed by either a will or a trust. These include jointly owned property that passes by survivorship, life insurance proceeds payable to nominated beneficiaries, and pension or retirement benefits payable under registered retirement schemes. Such assets are transferred in accordance with the applicable beneficiary nominations or statutory provisions and should therefore be considered separately as part of a comprehensive estate planning strategy.
Trusts are increasingly used in Kenya for estate planning because assets validly transferred during the settlor’s lifetime generally do not form part of the settlor’s estate for probate purposes. Consequently, such assets are not subject to probate or letters of administration and are less susceptible to succession disputes. Trustees must administer such assets in accordance with the TA, the trust deed, and the fiduciary duties owed to beneficiaries.
Trusts as a Shield Against Probate Litigation: Myth or Reality?
Trusts are increasingly used in Kenya for estate planning because as sets validly transferred during the settlor’s lifetime generally do not form part of the settlor’s estate for probate purposes. Consequently, such assets are not subject to probate or letters of administration and are less susceptible to succession disputes. Trustees must administer such assets in accordance with the TA, the trust deed, and the fiduciary duties owed to beneficiaries.
This protection, however, is not absolute. Courts may invalidate sham trusts or those created to defeat legitimate dependant claims, or where the trust deed is unlawful or improperly administered. Accordingly, a trust’s effectiveness depends on proper drafting, genuine asset transfers, independent administration, and sound governance.
One of Kenya’s leading authorities on trusts and estate planning is Albert Kigera Karume & 2 others v George Ngugi Waireri & 12 others [2017] KEHC 7794 (KLR). The High Court upheld the validity of the Njenga Karume Trust, affirming that properly constituted trusts are effective estate planning vehicles outside the probate process. The dispute also highlights the importance of appointing competent trustees, as disputes may undermine the administration of an otherwise valid trust.
The case illustrates a key principle of Kenyan estate planning: while a properly constituted trust can reduce probate risks, its effective ness ultimately depends on sound governance and competent trustees.
Conclusion
The absence of an estate plan often results in intestacy under the LSA, where statutory distribution may not reflect the deceased’s wishes and can lead to succession disputes. Wills and trusts are complementary estate planning tools: a will gives effect to testamentary wishes, while a trust offers benefits such as probate avoidance, confidentiality, continuity during incapacity, and long-term wealth preservation.
The question that every individual with assets should therefore be asking is not simply, “Have I made a will?” but rather:
“Does my estate plan, taken as a whole, reflect my intentions, protect my beneficiaries, minimise the risk of dispute, and operate with the speed and certainty that my family will need after I am gone?”
The answer to that question determines whether a will alone suffices, or whether a trust, or a combination of both, is the appropriate vehicle.
