While family and friends of deceased loved ones may be tempted to divvy up the property of the decedents themselves, that is not the proper way to go about transferring a decedent’s property. Kansas law requires that estates of decedents must go through a legal process called probate or estate administration before probate property can be legally transferred. In Kansas the District Court serves as the probate court and has jurisdiction over probate matters. The purpose of probate is to not only effect the orderly transfer of a decedent’s assets to their beneficiaries and heirs, but to also settle the decedent’s estate by making sure their debts are paid. Unfortunately, probate activities must begin immediately after the person’s death, a time which is very difficult for the family.
The first step in is to file a petition in the appropriate District Court. Typically it is the court in county were the decedent lived. An original copy of the will, if any, must be filed along with the petition. Submitting the petition opens the proceeding. What follows are many steps including a review of the will, appointment of the personal representative, identifying estate assets, paying debt, resolving claims, and finally distributing estate assets according to the provisions of the will or the Kansas Probate Code.
The personal representative has ultimate responsibility for making sure all these steps are cared for in a timely manner and in a manner that the law requires. Failure to do so can result in delays in probate, added expense to the estate, and perhaps personal liability to the executor. It is critical that the executor understand the process to avoid critical mistakes.
In Kansas, probate will take at least 6 months. However, complications such as probate disputes can stall the process and cause it to take much longer.
Problems During Probate
Estate litigation occurs when a party to the process initiates a legal challenge. One common type of legal challenge is will contest. A will contest is typically initiated when someone was left out of the will or received a smaller portion of the estate than they expected and, as a result, challenges the will’s validity. Will contests cannot be based solely on being upset about the contents of the will. The objector must have legal grounds for making the objection and must have evidence to substantiate it. Legal grounds include improper execution, lack of testamentary capacity, duress, undue influence, or fraud.
Objections to the will are not the only reasons for probate litigation. Other reasons include ambiguities in the will, claims of fiduciary breaches, creditor claims, and claims of heirship.
Consequences of Not Have Having a Will
Every estate must go through some sort of administration process, including estates of decedents who did not leave wills. The District Court must still appoint an administrator who is responsible for overseeing the settling of the decedents affairs and distribution of assets. The main difference is that because there is no will to instruct how the estate should be distributed, the administrator must look to Kansas’ laws of intestate succession to determine who gets estate property. Kansas Probate Code § 59-501 et seq. The surviving spouse and the decedent’s children are the primary beneficiaries and are entitled to the decedent’s entire estate. In the absence of either a surviving spouse or children, the law defines which of the decedent’s blood relatives are next in line to inherit. If there is a question about whether someone who claims to be an heir truly is, the court may require that the person prove entitlement through a kinship hearing.
Small Estate Affidavit
Kansas has a separate process for eligible estates that permits those who have a claim to estate property to avoid the traditional process. To use this process, the beneficiary or heir must complete a Small Estate Affidavit stating that:
- The estate has no more than $40,000 worth of assets
- No executor or administrator has been appointed and that there is no petition pending to appoint one
- All estate debt and expenses have been paid or will be paid
The affidavit must also list the property in the estate, its value, and the names of the decedent’s beneficiaries and heirs. Kan. Stat. Ann. § 59-1507b
As a result of this simplified process, the assets in the estate can be distributed much more quickly than under the formal process.