Circumstances A Public Trustee May Be Appointed To Administer An Intestate Estate

Introduction

The Law of Succession Act, Section 66 provides the list of persons who may be appointed to administer the estate of a person who dies intestate (without a will or other succession plan). The Public trustee is listed as 3^rd in preference.

Who is a public Trustee?

A permanent official carrying on the business of executorship and trusteeship as one of the governmental services of the State.  They act as a last resort Executor or Administrator of an intestate estate. The office of the Public Trustee, Kenya offers services of a specialized nature which involves identification and collection of assets, identification of beneficiaries, management and subsequent transmission of both movable and immovable property either as an estate or a trust. This office also offers trusteeship and executory services to the members of the public. Accordingly, this article will take a key focus on the circumstances that a public trustee can administer the estate of a deceased person, the duties of the public trustee and the pros and cons of having the trustee administer one’s estate.

What are the circumstances can a public trustee can administer the estate of a deceased person?

• Where a person dies intestate.
• Where a deceased who had a will did not appoint an executor.
• Where a person named as an executor in a will has renounced such appointment or is unwilling to act.
• Where the deceased appointed the public trustee as the executor to his will.
• Where the whole or part of the estate of the deceased are dead or unwilling to complete the administration of the estate.

Despite the enumerated circumstances, it is important to point out that in most cases, the court usually appoints the Public Trustee as a measure of last resort where beneficiaries cannot seem cone into a consensus on who is to apply to be an administrator. This is done in order to prevent the wastage and or intermeddling of the estate as a result of an estate not having an administrator to collect, manage and administer the estate. Additionally, the court can appoint a Public Trustee when it wants an impartial administrator especially when beneficiaries are unable to agree and have demonstrated prolonged and or vested interest in the estate. This was the court’s rendition in the case of In Re estate of Gurdial Kaur Sihra (Deceased eKLR. In this particular case the court after hearing the objection proceedings directed that the three daughters of the Deceased to petition for a grant of representation as administrators and thereafter facilitate gazettement of the same. Further they were directed to open a joint interest earning account for purposes of collection of the rent from the rental properties of the estate.  However, since the three proposed administrators could not agree on the modalities of opening a joint account where rental income would be deposited, the orders of the court became inoperative. Subsequently in order for the court to preserve the estate from waste and intermeddling duly appointed the public trustee as the personal representative of the said estate. Needless to say, the duties of a public trustee in administering an estate are similar to those of an executor or administrator of an estate.

What are the pros of having a public trustee administer one’s estate?

The main advantages of having the public trustee administer the ones estate are;

1. The assets of a deceased person will not be wasted and or intermeddled with if a public trustee is appointed to be the personal representative of the estate especially when the beneficiaries cannot seem to agree on who is to be administrator and or there are no none relatives to administer the said estate;
2. Having a neutral party administer one’s estate is valuable as they will faithfully and impartially administer the estate to the benefit of all the beneficiaries as opposed to having beneficiaries who have direct vested interest in the estate;
3. The public trustee being an independent office with no affiliation to any of the beneficiaries will assist in avoiding conflict between the beneficiaries in respect of administering the estate.

What are the drawbacks of having a public trustee administer one’s estate?

1. Additional charges are normally incurred by the estate- In order to administer one’s estate, the public trustee normally charges the estate for the services he offers and he is normally paid first before the reminder of the estate is distributed to the beneficiaries. This means that the bequest that ought to be distributed to the beneficiaries is reduced on account of the fact that they still have to pay the Public Trustee;
2. The estate runs the risk of being mismanaged by the public officers who are mandated to act as the public trustee as opposed to beneficiaries of the estate;
3. The office of the Public Trustee being in charge of managing and administering several other estates, one’s estate risk not being prioritized thereby delaying the distribution of the estate to the beneficiaries and;
4. The bureaucracies of having to deal with various protocols and set procedures in the office of the Public Trustee can be time consuming for beneficiaries who have to keep on following up with the public trustee to ensure the distribution of the estate.

Conclusion

Suffice to say we can be able to assist individuals primarily plan on his estate will be distributed to his rightful beneficiaries well before his demise. This will be through the preparation of a will, formation of a family trust thereby and or appointment of a trust corporation to act as one’s personal representative and or executor in a will averting a scenario where the public trustee is appointed to manage, administer and distribute one’s estate. Ultimately through the preparation of ones will and or incorporation of a family trust one is given an opportunity to name an executor (s) who they trust to manage and distribute their estate to one’s beneficiaries and or a trustee who will manage your wealth on behalf of your beneficiary in the case of a family trust.Please click here to download the article. 

How can we help?

The Wealth and Private Clients team at CM Advocates LLP prides itself in having a wide variety of resources, skills and experience on matters estate planning spanning, trust management and trust administration spanning across the East African Region. It offers an edge to its clients based on its legacy of having structured, re-structured, amended, incorporated several forms of trusts and therefore well capable of guiding you through the process of creating a valid blind trust. Should you have any questions regarding the subject of establishing a blind trust or a family trust, or related topic, please do not hesitate to contact  us on law@cmadvocates.com or dgichuru@cmadvocates.com

Contact Persons & Contributors

Dianah Gichuru- Partner Carolyne Rono-  Associate

Disclaimer

This article is for informational purposes only and should not be construed as legal advice.