Family Trusts for Kenyans in the Diaspora: Secure Your Legacy and Investments Back Home

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, 7^th Floor
2^nd Ngong Avenue, Nairobi, Kenya
E: law@cmadvocates.com;

Mombasa Office
Links Plaza, 4^th Floor
Links Road, Nyali, Mombasa, Kenya
E: mombasaoffice@cmadvocates.com