Tag: estate planning

The family trust vs will Kenya question is one more landowning and business-owning families are asking themselves, and most still default to a will simply because it’s familiar. But a will alone doesn’t shield your family from probate — the court process most people fear when it comes to passing on land, rental property, or a business.

What a Will Actually Does — and Where It Falls Short

A will is a legal document stating how you want your property distributed after you die. In Kenya, wills are governed by the Law of Succession Act (Cap 160), which sets out how a will must be signed and witnessed, and what happens if it’s contested. A will only takes effect after death, and it can’t be executed on its own — your family must still apply to court for a grant of probate, or letters of administration if there’s no valid will.

That court process is where most families run into trouble. Probate is public: the petition is published in the Kenya Gazette, giving anyone 30 days to object. If a family member disputes the will or a dependant feels left out, the matter can drag on for years. Under the Act, dependants who feel they weren’t given reasonable provision can also ask the court to intervene, which means a will doesn’t always guarantee your exact wishes are carried out unchanged.

What a Family Trust Does Differently

A family trust works differently from the start. Instead of leaving instructions to take effect after death, you (the settlor) transfer selected assets — land, rental property, shares, a business — into a trust during your lifetime. Trustees you appoint then hold and manage those assets for the beneficiaries you name, according to rules you set out in a trust deed.

Because the assets belong to the trust rather than to you personally, they generally fall outside your estate when you pass away and bypass probate altogether. Your family doesn’t need a court order to access rental income or keep a business running — the trustees simply continue administering the trust. In Kenya, family trusts are governed by the Trustees (Perpetual Succession) Act (Cap 164), amended in 2021 to formally recognise family and living trusts.

Family Trust vs Will Kenya: A Side-by-Side Comparison

The Tax Question

When families run the numbers on a family trust vs will Kenya basis, tax treatment is often what tips the scales. Transferring immovable property into a registered family trust can qualify for exemptions from both Capital Gains Tax under the Income Tax Act and Stamp Duty under the Stamp Duty Act — two costs that would otherwise apply to a normal property transfer, as CFL Advocates outline in their analysis of family trust incentives. These exemptions are tied to registered, properly incorporated trusts, which is why the registration step shouldn’t be rushed.

Setting Up a Family Trust: The Process

Understanding the family trust vs will Kenya process end-to-end is what keeps families from getting stuck halfway through registration, a common mistake as Anyanzwa J. S. & Advocates note in their registration guide:

1. 1Draft the trust deed — naming the settlor, trustees, beneficiaries, and the objectives and duration of the trust.
2. 2Stamp and register the deed under the Registration of Documents Act. The trust can begin operating as a simple, unincorporated trust at this stage.
3. 3Apply for incorporation under the Trustees (Perpetual Succession) Act, giving the trust its own legal personality.
4. 4Gazette notice — published for a 30-day objection window.
5. 5Certificate of Incorporation issued once the objection period closes, after which assets can be formally transferred into the trust’s name.

So Which One Does Your Family Need?

For most families, the honest answer is both, doing different jobs. A trust suits land, rental property, and business interests you want to keep out of probate and under structured, ongoing management — particularly if some beneficiaries are minors or need protection from mismanagement. A will remains useful for personal property, for naming guardians for minor children, and for anything you’d rather keep simple rather than locking into a trust structure.

However you land on the family trust vs will Kenya decision, the worst outcome is not deciding at all. The families who run into the most difficulty are usually the ones who relied on a will alone for land or a business, assuming their wishes would be carried out automatically. Reviewing your estate now — while you’re able to make these decisions calmly — is the surest way to spare your family a drawn-out succession dispute later.