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The honest answer is that most families need both — but not for the reasons people assume

By Eugene Mukamba, Advocate

Almost every client who walks in asking about a will is really asking a different question: how do I stop my property from becoming a courtroom battle after I’m gone? A will and a trust both try to answer that — but they do it in very different ways, and confusing the two is how families end up with neither working properly.

A Will Only Works After You’re Gone — and Only After Probate

A will has no legal effect while you are alive; it only takes effect on death, and even then, it does not directly hand property to anyone.

Your estate must first pass through the succession court under the Law of Succession Act (Cap 160), which issues a Grant of Probate before your executor can distribute anything.

Where the will is contested — and Kenyan succession disputes are notoriously common — that process can stretch into years, with the property frozen the entire time.

A Trust Works While You’re Still Alive

A trust takes effect the moment it is properly incorporated and funded, not on death.

Assets you have transferred into the trust are held and managed by trustees according to the rules you set out in the trust deed, and generally do not need to pass through the succession court at all when the time comes.

This is the single biggest practical difference: a trust can start protecting and organising your property today, and a will cannot.

Where a Trust Wins

• Assets move to beneficiaries without waiting for a Grant of Probate.
• You retain a say in how the property is managed while you are alive, not just how it’s divided when you’re gone.
• Clear, pre-agreed rules reduce the room for the kind of dispute that turns siblings against each other in succession court.
• Greater privacy than a probate file that becomes public record.

Where a Will Still Matters — Even If You Have a Trust

• Anything not transferred into the trust still passes under your will, or under intestacy rules if you have none at all.
• Guardianship arrangements for minor children are made through a will, not a trust deed.
• A will is faster and cheaper to put in place immediately, while a trust is being properly structured and funded.

The Practical Answer

Families with meaningful land, a business, or a history of internal conflict over property are usually far better served by a trust for their major assets, backed by a will that catches anything left outside it and appoints guardians where needed.

Families with a simpler estate and no history of dispute may find a well-drafted will, on its own, entirely sufficient. What rarely serves anyone well is doing neither, and leaving the outcome to intestate succession by default.