Family Trusts in Kenya: A Modern Alternative to Probate

The Trustees (Perpetual Succession) (Amendment) Act, 2021 created, for the first time, a direct path to register a family trust as its own legal entity — able to own property, contract, and sue or be sued in its own name.

What it actually is

You (the settlor) transfer assets to trustees, who hold and manage them for named beneficiaries under rules you set. A living trust is operational during your lifetime — the form that has made trusts genuinely attractive since 2021.

The practical benefits

• Avoids probate — assets properly settled into the trust don't form part of your personal estate on death
• Private — unlike court succession, a trust deed isn't public record
• Protects beneficiaries from themselves and, where irrevocable, from the settlor's creditors
• Tax incentives — transfers into a registered family trust are exempt from stamp duty and Capital Gains Tax under the Finance Act 2021

The limits

A family trust must be strictly non-trading — any business activity needs a separate company. Trustees owe real fiduciary duties and can face personal liability for mismanagement.

How registration works

Draft the trust deed → register it at the Lands Registry → apply for incorporation with the Principal Registrar → gazettement for objections → Certificate of Incorporation. The full process typically takes two to three months.

A trust doesn't replace a will — anything not settled into it still needs one, and the two should be drafted to work together.

This article is general information, not legal advice, and reflects the law as it currently stands. Rates, fees, and procedures are subject to change.