Family Trusts
for Kenyans in the Diaspora: Secure Your Legacy and Investments Back Home
By
CM Advocates LLP
For
the growing number of Kenyans living and working abroad, building a life in the
diaspora often goes hand-in-hand with investing back home—whether in land, real
estate, businesses, or family welfare. However, many diaspora Kenyans face
significant hurdles when it comes to safeguarding these investments, managing
them remotely, and ensuring their smooth transition across generations.
At
CM Advocates LLP, we advise
Kenyans in the diaspora to use family
trusts as a dependable, flexible, and secure legal structure for estate
planning and investment management. Family trusts provide long-term protection,
professional management, and a seamless way to transfer wealth—without the
delays, costs, or disputes of probate.
Legal
Framework for Family Trusts in Kenya
Family
trusts in Kenya are founded on strong legal footing:
- The Trustees (Perpetual Succession) Act, Cap
164, empowers individuals to register trusts as independent legal
entities capable of owning and managing property. - The Accumulation and Perpetuities
(Amendment) Act, 2021 abolished the former 80-year lifespan
limitation for trusts—enabling them to operate indefinitely and serve
multiple generations.
These
progressive reforms make Kenya a highly attractive jurisdiction for diaspora
Kenyans seeking long-term asset protection and structured legacy planning.
Common
Challenges Faced by Kenyans in the Diaspora
Despite
their commitment to invest back home, diaspora Kenyans frequently encounter:
(a)
Fraud, Land Grabbing &
Mismanagement
Properties
acquired remotely are often misused, grabbed, or sold off unlawfully by
relatives, third parties, or untrustworthy agents.
(b)
Probate Delays & Inheritance
Disputes
Without
a clear legal framework, succession becomes entangled in prolonged court
proceedings, contested wills, or family infighting.
(c)
Remote Asset & Business Management
Running a property
portfolio, farm, or enterprise from abroad is nearly impossible without trusted
and structured oversight.
(d)
Vulnerable Dependents at Risk
Absent a succession
plan, dependents such as children, spouses, or those with special needs may be
left unprotected or mismanage inheritance.
How
a Family Trust Addresses These Problems?
1.
Centralised, Professional Management of Local Assets
Family
trusts allow diaspora Kenyans to consolidate investments—land, rental
properties, businesses—under one trust. Trustees can:
- Manage and
maintain property - Collect rent or
dividends - Pay taxes and
cover operational expenses - Allocate or
remit income to beneficiaries locally or abroad
This
structured oversight ensures your assets remain secure, productive, and
compliant—even in your absence.
2. Eliminates Probate and Legal Delays
Assets
placed in a trust bypass the probate process under Kenyan law. Benefits
include:
- No need for a
court-supervised estate administration - Immediate access
to income and support by beneficiaries - Confidentiality
of your estate plan - Elimination of
inheritance-related delays or family disputes
3. Immovable Protection of Family Land
and Property
Trust-held
land cannot be grabbed or misused. You can legally stipulate:
- That the land be
preserved for future generations - That income
supports specified individuals (e.g. parents, spouse, children) - That decisions
be made by professional or neutral trustees
This
creates permanence, clarity, and protection around sensitive family assets.
4. Education & Welfare Support
Built into Your Legacy
A trust can establish
a designated education or welfare fund,
disbursed under conditions you define, to support:
- Tuition fees and
academic expenses for your children or siblings - Medical care,
upkeep, or housing for vulnerable relatives - Dependents with
special needs or long-term challenges
This ensures
sustainability, structure, and responsible use of your resources.
5.
Business Continuity for Diaspora-Owned Enterprises
Whether you’ve
invested in an SME, farm, or rental business, placing it in a trust enables:
- Continued
operation after death or relocation - Professional
management with consistent income to family - Avoidance of
collapse or mismanagement by inexperienced heirs
Trusts
as Holding Vehicles for Family Businesses
A family trust can
act as a strategic holding company
for shares in one or several family businesses, allowing:
- Centralised
control and governance - Long-term
succession planning without restructuring - Intergenerational
stewardship of family enterprise
The Articles of Association of family
companies can be amended to mirror the trust deed, giving trustees the power
to:
- Appoint or
remove directors and managers - Approve major
decisions or veto them - Align business growth with the
settlor’s long-term values
Even while living
abroad, the settlor or trustees can retain full legal and managerial control
via Kenya-based directors or trust managers—ensuring consistent governance
aligned with your family’s goals and identity.
Trusts vs Statutory
Succession: Why It Matters
In the absence of a
trust or valid will, Kenya’s Law of
Succession Act (Cap 160) automatically applies, particularly Sections 35
and 40, which mandate formulaic distribution across spouses and children. In polygamous or complex family settings,
this often leads to contentious and unintended consequences.
Illustrative
Case: Rono v Rono [2005] eKLR-Here, the Court of Appeal enforced
statutory sharing among multiple houses, regardless of individual
contributions. This case remains a stark warning against relying on intestate
succession where the law—not the individual—decides who gets what.
Recent jurisprudence
such as Chepyator v Chepyator & 11 others; Kogo (Petitioner); Rono
(Interested Party) [2024] KEHC 10918 (KLR) reaffirms that where no family
consensus exists, courts will apply Section 40’s “house-to-house” formula,
considering number of children per house and any land previously allocated by
the deceased. This can override personal wishes unless clearly documented
through legal means like trusts.
A family trust removes your estate from the limitations of
intestate laws, giving you full authority to define:
- Who inherits
- How and when
they inherit - Conditions for
management or distribution
Types
of Assets Ideal for Trust Holding by Diaspora Kenyans
- Residential or
ancestral land in Kenya - Rental
apartments and commercial buildings - Shares in
Saccos, companies, or investment portfolios - Agribusinesses
and farming ventures - Education,
health, or emergency funds - Life insurance
proceeds and pension entitlements - Family
businesses and joint ventures
Transferring these to
a trust guarantees structured succession, continuity, and legal security—no
matter where you live.
How
CM Advocates LLP Supports Diaspora Kenyans
At CM Advocates LLP,
we offer end-to-end legal solutions tailored to your diaspora context:
- Drafting Trust Deeds aligned with your estate goals and family dynamics
- Registering Trusts under the Trustees (Perpetual Succession) Act
-
Cross-border legal counsel on tax, enforcement, and asset
structuring -
Neutral professional trustee services, when independent oversight is
needed -
Training for family trustees to ensure future-proofed
succession -
Company and Trust Alignment, including revising company
Articles to empower trustees with business decision-making authority
Conclusion: Safeguard
What You’ve Built—Across Generations and Borders
Kenyans in the
diaspora face a unique combination of opportunity and vulnerability when
managing assets back home. Whether you seek to:
§ Avoid inheritance
disputes and probate delays
§ Preserve family land
and legacy
§ Support loved ones
through education or welfare programs
§ Ensure your business
survives and thrives into the next generation
A family trust provides the legal
structure and peace of mind to make it happen.
With added powers to own shares, control businesses, and dictate
succession, a trust becomes the foundation of a lasting legacy. CM Advocates LLP is your trusted legal
partner in Kenya—building, registering, and administering family trusts
designed to endure across generations and borders.
Partner
with Us Today
CM
Advocates LLP
is your trusted legal partner in Kenya—building, registering, and administering
family trusts that are tailored for Kenyans in the diaspora and designed to
stand the test of time, distance, and succession.
For
personalised legal advisory and trust structuring services, contact us:-
CM
Advocates LLP – Kenya
Head
Office – Nairobi
I&M Bank House, 7th Floor
2nd Ngong Avenue, Nairobi, Kenya
E: law@cmadvocates.com;
Mombasa
Office
Links Plaza, 4th Floor
Links Road, Nyali, Mombasa, Kenya
E: mombasaoffice@cmadvocates.com