What amendments are in the Public Trustee (Amendment) Bill, 2017 ?

What is in the Public Trustee Bill, 2017?

The Public Trustee is entrusted with the function of taking care of, managing, administering and/or distributing property of deceased’s persons who died intestate. This is to ensure that deceitful and exploitative people are not appointed to manage the deceased’s estate for their own selfish gain.

The objects of the Act will be to provide for a manager, administrator, executor or trustee, to offer trustee and executor services to the public and to establish the Public Trustee Investment Board. It also sets out qualifications for one to qualify for the position of Public Trustee. One must at least 15 years of experience as a legal practitioner or a distinguished academic in the legal field or should qualify to be appointed as a judge.

The Bill also specifies that the High Court is the only court that is to handle matters dealing with the administration of trusts.

With regard to missing persons, the Public Trustee may make an application to the court and the court may declare the person to be a missing person and appoint the Public Trustee as trustee of either part of the missing person’s property or the missing person’s property generally. After this, the Public Trustee may administer and sell the property (with the consent of the court) and pay debts accruing to the missing person, then pay his spouse/dependant, a minor child of the missing person or an adult child who because of a physical or mental disability is unable to earn a livelihood.

If a missing person is found, the Public Trustee will return the property back after obtaining further orders from the court. However, if the missing person is discovered dead, the Public Trustee will administer or transfer the property to the personal representative of the estate.

The Bill also contains proposals that allow the Public Trustee to act as a guardian for adults who are incapable of taking decision due to age, sickness or any other reason considered by the court.

It provides for the establishment of the Public Trustee Investment Board whose functions will be to control investment of money that is available from time to time, formulate and review the Public Trustee Investment Policy, to provide relevant advice and direction to the accountant in charge of the Public Trustee accounts and to make prudent investment decisions. They are also to send quarterly reports to Attorney General. It will be composed of the Solicitor General who will be Chairperson, a nominee from the National Treasury with knowledge and expertise in investment matters, two persons nominated by the Attorney General with knowledge and experience in matters relating to the law of succession and the Public Trustee. Their tenure will be 3 years and will be eligible for re-election.

The Public Trustee may receive payments of compensation under the Work Injury Benefits Act, Pension Act, Civil Servants Group Accident Insurance Scheme and any other payment arising from compensation as a result of an accident and administer the funds as prescribed.

Where consent of a person is needed before the appointment of Public Trustee as an administrator or trustee and the person is either absent from the territory or has not reached 18years or is not of full mental capacity or is under any other disability or is missing appointment of the Public Trustee will be made regardless of that fact.

It also seeks to enhance the jurisdiction of the Public Trustee for Summary Administration from Ksh.500, 000 to Ksh.3 million. A proposed grantee of the Certificate of Summary Administration shall submit to the Public Trustee a statutory declaration verifying that the gross value of the deceased’s estate does not exceed Ksh.100, 000. It also increases the amount the Public Trustee can hold in a minor’s trust estate.

Insertion of a new sub-section that states the Public Trustee has power to summon and examine witnesses on oath & compel production of documents whenever necessary. The Public Trustee annual accounts shall be prepared, audited and reported in line with the Public Audit Act of 2015. The Unclaimed Financial Assets Act shall not apply to the Public Trustee.

It also encourages alternative dispute resolutions by stating that the Public Trustee may apply them to resolve disputes that relate to the administration of estates.

This article was written by
Sylvia Katua of Mzalendo Trust .
It was published on Nov. 13, 2017.


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