Wealth Preservation and Asset Protection in Kenya

Estate planning means organising, protecting and passing on what you own, during your lifetime and after. It is not only for the wealthy. Anyone who wants to provide for their family, or keep a business running, benefits from a plan.

Why it matters

Without a plan, families can face long court processes, disputes over assets, and avoidable taxes and costs. A good plan also protects what you own against:

• Legal claims. Structuring assets well can protect them from creditors and unexpected liabilities.
• Divorce. Trusts and family companies can keep family wealth with the people it was meant for.
• Incapacity. Your affairs are managed as you wish if you can no longer make decisions yourself.

The tools

1. 1NominationsNominate beneficiaries for pensions, insurance policies and some accounts, so those assets pass directly without a court process. Review nominations after marriage, divorce or the birth of a child.
2. 2Powers of attorneyAppoint someone you trust to manage your affairs. Set out the scope of their authority and register the power of attorney where required, for example for land. A power of attorney ends on your death.
3. 3WillsSet out who receives your assets, who your executors are and who will be guardian of young children. A will takes effect only on death, and your executors will still need a grant of probate from the court.
4. 4Matrimonial property agreementsAgree before marriage how property will be treated if the marriage ends. They reduce disputes and clarify what was owned before marriage or inherited.
5. 5Family companiesHold family property, businesses and investments in one company, with a shareholders' agreement or family charter setting out decision-making, distributions and succession. Moving assets into a company can attract stamp duty and capital gains tax, with relief available in some cases, so check before transferring.
6. 6Family trustsHold assets through trustees for your family under a trust deed. Trusts are covered in more detail below.

Separation and divorce

Family wealth planning has to account for the possibility of separation. Under the Matrimonial Property Act, 2013, property acquired during a marriage is divided according to each spouse's contribution, which can be financial or non-financial. Kenya's Supreme Court has confirmed there is no automatic equal split.

• Agreements before marriage can set out how property will be treated, and are recognised by the Act.
• Clear records of what was owned before marriage or inherited reduce disputes later.
• Trusts and family companies can keep family assets with the people they were meant for, if they are set up and run properly.

Making a will that stands

• Capacity. You must be an adult of sound mind when you make the will.
• Free choice. You must sign it voluntarily, knowing and approving what it says.
• Proper witnesses. Two competent witnesses must see you sign. A gift to a witness, or to a witness's spouse, is void, so beneficiaries should not witness your will.

Wills that do not meet these requirements, or the Law of Succession Act, can be challenged and set aside. Dependants who are not adequately provided for can also ask the court for provision.

Family trusts under the new law

The Trust Administration Act, 2026 came into force on 25 September 2026 and replaced the Trustees (Perpetual Succession) Act. Under the new Act:

• Registration. A written trust must be registered with the Registrar of Trusts to be enforceable.
• Annual return. Due within 30 days of each registration anniversary. Changes to trustees, beneficiaries or the deed must be filed within 21 days.
• Beneficial ownership. Every trust keeps a register of beneficial owners and lodges a copy with the Registrar. It is not open to the public.
• Existing trusts. Trusts set up under the old law remain recognised but must comply within 24 months.

Used well, a trust provides continuity if you are unwell or pass away, avoids probate for assets already in it, releases funds to children by age or milestone, and keeps family affairs private. These benefits apply only to assets genuinely transferred into the trust. Trusts suit holding assets rather than trading, so an active business may sit better in a family company owned by the trust.

Where to start

1. 1List what you ownand how each asset is held: in your name, jointly, through a company or in a trust.
2. 2Update your nominationsfor pensions, insurance and accounts.
3. 3Make or update your willand appoint guardians for young children.
4. 4Put a power of attorney in placeso someone you trust can act if you cannot.
5. 5Review the family businessand agree how decisions, distributions and succession will work.
6. 6Consider a trustfor assets you want held for the long term.

Estate planning is a process, not an event. We can help you understand your options, put together a plan that combines the right tools, and keep it up to date.

LEGAL TAKE BY FMC ADVOCATES
This guide is general information, not legal advice on your circumstances.