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How often do you think about your estate — the sum total of your assets and debts you will leave behind for your heirs when you pass? Normally, people don’t give it much thought, but did you know that in 2019 alone, Kansas saw a total of 9,705 filings for probate-related matters? This number has remained pretty consistent, with 2017 seeing 9,406 filings and 2018 recording 9,599 filings.

While these figures are just a fraction of the nearly three million population Kansas has maintained throughout those years, they show that estates and probate are a factor in someone’s life in the Sunflower State, whether they are prepared for it or not. 

To help you prepare for the inevitability of having to sift through Kansas’s inheritance laws, this article details common estate and probate statutes in the state. It answers questions such as what a valid will is and who inherits what in case the deceased didn’t leave a will. It also touches on a few statutes covering situations that might not happen but where legal knowledge will prove useful if they do occur. 

What Happens if Someone Dies With a Will in Kansas?

Before diving into what happens if someone passes with a will, let's first establish what makes a will valid.

Under Kansas law, a person must be at least 18 years old and of sound mind in order to make a valid will. A testator is considered to have a sound mind if they know the properties they own and understand to whom these properties will be given. Someone who has been deemed mentally incompetent in a past legal proceeding due to circumstances such as insanity is legally considered not of sound mind. 

All wills, aside from oral wills disposing of personal property, must be in writing and signed by either the will’s testator or a competent person under the directions of the testator. Written wills need to be signed in the presence of two or more competent witnesses. preferably those disinterested in the contents of the will

Written wills that follow the requirements stated above can be made self-proved, meaning that the testimonies of the witnesses to the making of the will would be unneeded during probate. Instead, the witnesses and the testator must simply execute an affidavit confirming the will’s authenticity.

Whether self-proved or not, a petition to probate a will must be made within six months of the testator’s passing. This is in order for the document to validly pass along property to the heirs or beneficiaries. Probating a will is the process of verifying its validity as a legal document and a true statement of the deceased’s wishes. 

Certain kinds of property, such as real estate or motor vehicles, can be designated as transfer-on-death assets that automatically pass onto the beneficiary named under their title. Other assets with named beneficiaries, such as life insurance policies, also avoid probate.

Hiring an estate planning attorney may help a testator create a legally valid will and a comprehensive plan to make sure that the distribution of their assets will be carried out according to their wishes.

Petitioning the Court for Probate

Any person interested in the estate of a deceased testator may petition the court for the probate of their will, stating details like the name, residence, and addresses of the heirs or beneficiaries and executor of the estate in their petition.

Additionally, the will must accompany the petition if it can be produced. If the will is lost or destroyed, then the estate may still be probated as if it had one, provided the petition contains a statement of the provisions of the will instead.

Once a petition has been filed with the court, the court will set a time and place for the probate hearing and order that notice be given to interested parties and creditors in the proceedings. The executor or administrator of the will, under the guidance and approval of the court during probate proceedings, will take stock of the property included in the will, settle outstanding debts the deceased had, and then finally distribute the remaining assets among the heirs. 

Contesting a Will

If an heir or otherwise interested party finds something wrong with the will, they can move to contest it. In Kansas, a will contest is treated as a demand against the estate. As such, it must be filed either within four months of the first publication of notice to creditors or 30 days if actual notice is given to known creditors.

Different parties may have different reasons to contest a will. The following are some of the more common reasons an interested party may contest a will:

  • An interested party may bring up the existence of undue influence, forcing the willmaker to include certain provisions in their will. As defined by Kansas courts, undue influence is a level of coercion or restraint that effectively overcomes the will of the testator, forcing them to follow the will of another. 

This can come in the form of isolating the testator from friends and family, lying about the circumstances surrounding their heirs, or preventing the testator from conferring with their counsel when making the will. Certain forms of elder abuse also fall under undue influence, such as using one’s position as the primary caretaker of an elderly adult to exploit their finances.

  • An allegation of a lack of legal capacity on the testator’s part may also be used to contest the validity of a will. Lack of legal or testamentary capacity means that the maker of the will lacked one or more of the requirements to execute a valid will. This ground is generally invoked when there is proof that the testator was not of sound mind when making the will. 

Examples of this include when the testator was suffering from some form of mental incapacity at the time of executing the will, such as Alzheimer’s disease or dementia.

  • Fraud or forgery is another ground for contesting the validity of a will. An interested party may bring up circumstances surrounding the execution of the will that may amount to fraud or forgery, such as if the executor of the estate altered the will of the deceased and willingly endorsed the same to the court for probate, or if an heir misrepresented their personal circumstances to the testator in order to get a larger share of the estate.

  • In addition to exterior errors or influences, formal mistakes or mistakes pertaining to the method or content of the will may be used to question the validity of a will. This is commonly done when the will lacks an essential element, such as if the testator was unable to sign the will during their lifetime or if it was not wholly written by the testator or a competent person they trust. 

Whichever reason you choose, it is recommended that you consult with an attorney regarding the validity of your will contest claim and what evidence is needed to back it up.

What Happens if Someone Dies Without a Will in Kansas?

If a Kansas native passes away without executing a will or similar estate document, then that means they have died intestate. Their property will be passed along to the heirs designated by the state’s intestate inheritance laws.

Since there is no will to dictate who will administer the estate, the court may appoint someone to fulfill that purpose after a proper hearing. Such a person is called the administrator, and, as the name suggests, they will handle the administration process for the estate.

Even if there is an administrator, an intestate estate still needs to be probated. The difference between the two — namely probate and administration — is that probate is just one step in the estate administration process. To sum it up, probate is the process by which someone is formally appointed as the estate’s administrator, while administration is the full process of distributing the estate to the proper parties. 

Now, how does one initiate a hearing for intestate probate?

Filing a petition for administration follows the same procedure as filing a petition for probate; an interested party files with the proper district court a petition for administration, after which the court may set a hearing, determine the administrator for that estate, and resolve adverse claims against said estate before carrying on with administering or probating it.

One additional detail for the petition for administration, though, is that you must include whether administration is sought under the Kansas Simplified Estates Act and, if so, one or more reasons for seeking administration under the Kansas Simplified Estates Act. 

In considering whether or not the estate qualifies for simplified administration, the court considers factors such as the size and solvency of the estate, the probable costs of administration and probate through the regular processes, and the wishes of the heirs and beneficiaries.

If qualified, simplified estates under the said act tend to go through the probate process faster because more steps may be resolved outside of court, such as the inventory and distribution of assets. Generally, a simplified estate only needs the court’s supervision when it needs to be closed.

Spousal Rights

Kansas follows the common law system of inheritance laws, meaning that the state follows legal precedents set by previous judgments and unwritten legal concepts. One such concept Kansas follows is that spouses do not automatically gain a share in the property acquired by the other. 

In intestate succession, this means that the deceased spouse’s property does not automatically transfer to the surviving spouse without an express provision stating so in a document like a transfer-on-death deed or form. This is a separate document that’s signed by the owner and filed with the Recorder of Deeds or County Treasurer, depending on the property being passed along. Absent this or similar provisions, the deceased’s estate has to be administered and divided according to state laws. 

Under the relevant Kansas statute, the surviving spouse may choose to take an elective share of the deceased’s augmented estate. This is a minimum amount that the spouse may inherit from the deceased’s estate, regardless of any will or probate device. 

In order to acquire their elective share, the spouse must file with the court that has jurisdiction over the probate case a petition for elective share and mail to the deceased’s personal representative a copy of the petition within six months of the deceased’s passing or within six months of receiving notice from the estate’s administrator.

How much of an elective share a surviving spouse may receive depends on how long they and the deceased were married, starting at 3% of the augmented estate for one year of marriage and going up to a maximum of 50% for 15 or more years of marriage. 

Aside from the elective share, state laws provide that if the deceased leaves no will and has a spouse but no children, then the surviving spouse gets all the deceased spouse’s property. If there are children in the marriage, whether by blood or adopted, then the spouse gets half the property. 

With regard to divorcees, they do not inherit from their former spouses because a final decree of divorce automatically revokes a divorced spouse’s inheritance rights to the deceased’s estate. 

Children’s Rights

If the deceased has children but no surviving spouse, then their child or children will receive their estate in its entirety, divided up into equal shares. If the deceased has a surviving spouse and children, the latter will get only half of the estate, which will be divided equally among them.

But what does Kansas inheritance law consider children of the deceased? Kansas statutes and jurisprudence say the following are children that can inherit from a deceased’s estate:

  • Biological children born during the deceased’s lifetime.

  • Biological children conceived during the deceased’s lifetime but born after their death.

  • Adopted children.

  • Biological children adopted by someone else.

  • Children born outside of marriage but with established paternity.

  • Grandchildren, but only if their parent — the deceased’s child — is also dead and cannot receive their share.

The Rights of Other Surviving Relatives

If the deceased had no spouse or children, then their estate goes to their parents, either biological or adoptive. One thing to remember, though, is that if the deceased was adopted, then their biological parents fully lose inheritance rights to the deceased’s estate. This is the reverse of the situation listed above, where an adopted child can still inherit from their biological parents.

If the deceased has no spouse, children, or parents when they pass, then their estate goes to the heirs of their parents, otherwise known as the deceased’s siblings.

As a final resort, if the deceased leaves no surviving spouse, children, parents, or siblings, then their property may pass onto the living heirs of their last spouse who died before the deceased’s death.

Estates With No Heirs

With no legal heirs to inherit, a deceased’s estate will undergo the process of escheat and will become state property. An administrator will be appointed to liquidate the estate. Any possible heirs are given six months from the appointment of the administrator to come forward and make their claim on the deceased’s estate. 

If no such claim is made, the administrator will sell the real estate in the estate and close it, remitting the proceeds to the state’s treasurer, who will deposit the same in the state treasury to the credit of the escheat proceeds suspense fund.

Unique Situations in Kansas Inheritance Law

The following are a few quick facts about unique situations concerning (miscellaneous) inheritance laws in Kansas:

  • Kansas has a law preventing murderers from inheriting from their victims. The Sunflower State specifically prohibits someone from inheriting assets, whether through testate, intestate succession, or other legal processes, if they feloniously murdered the person or had a hand in their murder.

  • In order to inherit from someone, you need to have outlived them for at least 120 hours. This is called a survivorship period, and it generally needs clear and convincing evidence in order to be proved.

  • Any will you make is automatically revoked if you get married and have a child. This Kansas law doesn’t distinguish between adopted or biological children, either.

  • Kansas laws do not specify whole- or half-blooded relatives. Statutes only count degrees of generational separation, preventing relatives of six degrees or farther of separation from inheriting from the deceased.

  • Kansas laws are silent as to the citizenship of a deceased’s heirs. This means that nonresidents of the state or country may inherit a portion of the deceased’s property, following the rules on testate or intestate succession.

Does Kansas Impose Inheritance and Estate Taxes?

Kansas used to impose inheritance or estate taxes but has since repealed those laws. Federal estate taxes still apply, but only for estates that are worth more than the federally set threshold. These thresholds are set on a yearly basis and apply to deaths during that year. So, a deceased’s estate worth $12 million would need to file for estate taxes if the deceased passed in 2021 but not if they passed in 2022.

Federal estate tax rates only apply to whatever excess the estate has over the applicable threshold. So, using the example from earlier, the deceased’s estate worth $12 million would have a taxable excess of $300,000 if the deceased died in 2021.

Resources Related to Inheritance Law in Kansas

The following are organizations, publicly accessible databases, and hotlines that heirs can reach out to or access for legal assistance as they work through estate or inheritance-related problems. Some of these provide pro bono or reduced-fee representation services, while others provide advice and consultation for free or for a fee.

Kansas Legal Services

Kansas Legal Services is a nonprofit corporation that connects with low-income residents and provides them with legal representation and mediation services. Interested individuals can fill out the corporation’s online application form and get in contact with its intake specialists, who will determine their eligibility for free or reduced-cost legal services. Its services cover a variety of topics, from legal matters concerning small estates to tax-related or debt-collection cases.

Kansas Legal Services also offers free legal forms for various needs, such as divorce and child support. The system automatically fills in documents based on the answers given, helping users complete legal documents on their own.

Washburn University Law Clinic and Library

The Washburn University Law Clinic represents clients who have difficulty affording private legal counsel. The clinic is staffed by licensed law students under the supervision of faculty attorneys. It handles litigation matters in various practice areas, including estate planning, family, immigration, and civil consumer law. Small businesses may also reach out for assistance regarding transactional law matters.

While the Washburn University Law Clinic can only serve clients within Shawnee County, the university’s law library is open to the public and has an online catalog of legal books covering a myriad of topics, from estate law to criminal law.

Kansas Bar Association Lawyer Referral Service

The Kansas Bar Association Lawyer Referral Service is a program that facilitates the process of connecting clients with member attorneys in the Kansas Bar Association. Interested individuals can fill out the request form found on the program’s website to be matched with a participating attorney. 

The program covers various fields of law, including estate planning, personal injury, medical malpractice, and administrative law matters. Participating attorneys choose which area of law they will receive referrals in, so clients are connected to legal counsel with experience handling matters similar to their current legal issues.

Clients who cannot access the online form or merely need assistance filling it out can reach out for assistance by calling 785-861-8838.

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