As a single mum, how do I protect my babies in terms of inheritance upon my death?

Dear Harry,

I am a single mother of two children aged below 10. I have investments which include an apartment that we are living in and two plots in Mlolongo and Kajiado. I have never been married and was wondering whether it would be possible to write a will indicating how my property shall be shared between my son and daughter. How will the property be managed in case I pass on before my children turn 18? What would happen to my investments should I pass on without writing a will and my children disagree on inheritance?

Jane, Nairobi

Dear Jane, The law allows parents to write wills detailing how their babies shall inherit their investments upon death. A parent(s) can also appoint testamentary guardians to take over parental responsibility of their children should they die before reaching age 18. The guardian would not only administer the investments but ensure the children get their rightful shares after turning 18 years. For starters, a will is chiefly concerned with the disposal of property upon death but can also be used to appoint administrators of the estate or trustees. The document can also issue directions on payment of taxes and other liabilities like debts of the dead person and general administration of the estate. However, parents who die intestate (without writing a will) invite the court to follow the laws of succession in splitting investments which, could be arbitrary and unsuitable. Making of a will also enables the parent to make a full disclosure of all the property owned when alive which is not possible in cases of intestacy. Failure to make a will often leave some property undisclosed leading to loss of assets that could run into millions of shillings. Furthermore, the investor may have wished to bequeath a portion of property to non-family members which cannot be done intestate. Generally, only the next of kin – who are often close family members - are entitled to inherit but a will may ensure persons outside the immediate family benefit too. Consequently, the will would avoid fights between heirs and survivors over the estate following the written wishes of the deceased property owner. Interestingly, there are investors who believe writing a will may curtail their control of investments while alive. However, wills only take effect upon death and cannot limit rights of ownership nor confer benefits to anyone as long as the investor is alive. Furthermore, before death, the document is a mere declaration of intention with no legal effect whatsoever. Wills of parents can also be contested in the High Court like the one that involved the family of the late Starehe MP Gerishon Kirima. Supreme Court Judge Justice Isaac Lenaola invalidated the will of the late legislator and ordered that two trustees be appointed to manage his over Sh2 billion estate. Justice Lenaola found that the late MP died without a Will (intestate) and his estate would be distributed under intestacy rules. Harry Ayodo is a practicing advocate of the High Court of Kenya. He works for the Law Society of Kenya.