Gifts in the lifetime and contemplation of death in Kenya

Explore estate planning through gifts in the liferime or near death. Understand legal implications and benefits.

Gifts in the lifetime and contemplation of death in Kenya

Last updated on November 23rd, 2024

Gifts are a common estate planning tool in Kenya. Unlike a Will, where the Will writer has control of their wealth until death, the law allows an adult of good understanding to gift their loved ones in two ways:

  1. during their lifetime or
  2. in contemplation of death.

The person donating the gift is the donor while the one receiving is the donee in legal terms.

Types of gifts

  • cash
  • land
  • real estate
  • joint tenancy in land
  • financial accounts

Gifts to a beneficiary during a deceased lifetime do not form part of the estate. The gift is only accounted for when determining the beneficiary’s interest in the estate. This means, during estate distribution, the beneficiary may have their share reduced.

The validity of the gift depends on the parties’ intention and the parties’ conduct. So, both the donor and the donee of the gift must do everything possible to ensure that it passes.

Mere promises are invalid under the law.

When a person transfers land as a gift in Kenya, it must be in writing.  And if the land transfer is already signed by the donor, the donor cannot recall the transaction. Further,  even if the donee has not effected registration of the land transfer, it is a valid gift. 

Seven ways of donating a gift:

  • a gift deed,
  • declaration of trust by the donor,
  • resulting trusts,
  • written instrument,
  • delivery,
  • transfer, or
  • registration.

Advantages of gifting before death

  1. Saving money on reduced legal and filing fees. If you gift a huge part of the estate before death, the the remaining estate could attract much lesser fees. The legal fee and filing fee of the estate case in the Magistrates’ Court is cheaper than in the High Court of Kenya.
  2. The donor is very happy and satisfied in seeing their loved ones enjoy the gift in their lifetime.
  3. The gift handed out during one’s lifetime of the deceased does not form part of the estate. This makes the estate administration easier.
  4. The donee receives the gift much earlier than having to wait for the probate process.

When preparing an estate plan, you should always consider the possibility of handing out gifts to your loved ones. If you’re unsure how you might give gifts before your death, contact an experienced estate lawyer today. Or, call Kubwa & Co Advocates directly at +254728607818 or email [email protected]

Should you require more information, please do not hesitate to contact [email protected]

Counsel Yuvenalis O. Kubwa Founder & Managing Partner- Kubwa & Company Advocates
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Yuvenalis Kubwa is an advocate of the High Court of Kenya and a member of the Law Society of Kenya.

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