Probate in Kansas ~ What to do with my loved one's Last Will & Testament?
Probate cases can be relatively straightforward or exceedingly complex, depending on the nature of the estate. The following explains useful terminology and the process of probate in Kansas. Feel free to contact our office with any questions for an easy, no-hassle free consultation.
Useful Kansas Probate Terminology - What is Probate?I. Probate
Estate Administration generally refers to the process of submitting a Will to the Probate Court, having a fiduciary appointed for the estate, collecting all assets of the estate, paying all appropriate debts of the estate, determining, preparing and submitting appropriate income and estate tax and real estate filings, distribution of assets in accordance with the will or the laws of intestacy and closing the estate.
A. Personal Representative's Duties
a. Inventory decedent's assets:
i. Ascertain and take control of property, inventories to probate court
b. Give notice to and pay creditors:
i. Usually by publication, sometimes actual notice to known creditors
ii. Have them file claims within statutory period or they'll be barred
iii. File federal and state estate tax returns and pay them
c. Distribute decedent's probate property:
i. To those entitled to receive
II. Non-Probate Property
Property that passes title through another instrument, NOT A WILL, like:
a. Life Insurance: Proceeds paid by insurance company to beneficiary upon death;
b. Joint Tenancy: Real & Personal Property - Decedent's interest vanishes upon death & survivor has the whole property;
c. Contracts with Payable Upon Death Provisions: Contract that is payable to beneficiary upon death;
d. Intervivos Trust: Trustee holds property for benefit of beneficiaries; trustee distributes property to beneficiaries according to provisions of trust instrument;
e. Gifts; AND f. Joint Accounts.
III. Avoiding Probate Going Forward
Probate may be avoided if the decedent during his/her life arranges to transfer all their property upon death to its rightful beneficiaries. Affidavits may be used to transfer a title from the decedent to a beneficiary through the creditor (i.e., bank) who is holding the title. Very difficult in practice.
Functions of Probate & Calculating the Probate EstateFunctions of Probate
1) Provides evidence of transfer of title to the new owners by a probated will or decree of intestate succession;
2) Protects creditors by requiring payment of debts; AND
3) Distributes decedent's property to those intended after creditors are paid.
Calculating the Probate Estate
1) Gross Probate Estate: All assets that are needed to be transferred through probate court.
2) Net Probate Estate (the net probate estate is what is distributed): The assets to be distributed after debts, fees, allowances, etc. are taken out:
Net = probate estate - exempt property - family allowance - homestead - debts - fees/cost of administration - attorney fees/personal representative fees - taxes (if any)
The Process of ProbateThe Process of Probate
1) Appoint a personal representative to oversee administration of estate by court.
a) Inventory and collect the assets of decedent
b) Manage assets during administration
c) Receive and pay claims of creditors and tax collectors
d) Clear titles to cars, real estate, or other assets.
e) Distribute remaining assets to those entitled.
NOTE: If the decedent dies intestate or does not name an executor who qualifies to execute the estate, an administrator is chosen from a statutory list of persons given preference in the following order: (1) spouse; (2) children; (3) parents; (4) siblings; (5) creditors.
2) Administrator must give bond unless bond requirement is waived.
3) Handling creditors
a) "Non-claim Statutes:" Creditors (in every state pursuant to statute) must file claims within a specified time period. Two forms:
i) Bar claims not filed within a short period of time after probate proceedings have begun (2-6 months).
ii) Whether or not probate proceedings have begun, bar claims not filed within a longer period after the decedent's death (1-5 years)
4) Administrator must pay all creditors and then close the estate and pays the beneficiaries.
NOTE: Administrators determine who gets certain property (the best interests of the estate) if family members are arguing over distribution.
"In Terrorem Clause" - clause that stipulates challengers of a will are to be disinherited.
You Have Enough to Worry About - Reasons to Hire an AttorneyIt is important to understand each heir's rights in the estate, and the proper way for the estate representative to file, give notice to interested persons, and obtain authorization to act in behalf of the estate. We prepare and file forms, give required notice, obtain property appraisals, draft inventories and accounts, ensure compliance with tax filings, assist with selling and disposing of estate property, and guide the representative in settlement and approval of final accountings for the estate. We have access to experts in art, furnishings, antiques and real estate values, realtors, tax accountants, surveyors, engineers and other professionals needed to get the work done correctly.
Contact Lykins Law today for a free consultation - big estate or small; it it crucial to have someone who can navigate your loved one's estate through the probate process in a timely, cost-efficient manner.