Is Probate Necessary if a Will Exists in the State of Kansas?

Most states have probate courts that supervise the handling of estates of their deceased residents, whether they leave a will or not. Kansas is no exception. The state requires that the estates of most residents who die with property or debt must pass through the Kansas probate process. To understand exactly what that means, it helps to get an overview of Kansas probate laws.

Most people understand that probate is a court process where the assets of a deceased person are divided among their heirs and beneficiaries. This is true, as far as it goes. However, in Kansas, as in most states, the probate process involves more than just distributing assets.

Probate is a court procedure where all aspects of a deceased's estate are reviewed and adjudicated. This involves everything from figuring out if the will is valid to paying estate taxes. Probate can involve:

• Determining if the deceased left a will.
• Locating the will.
• Resolving will disputes.
  
• Determining the validity of a will.
• Selecting an executor or administrator to shepherd the estate through probate.
• Locating probate assets of the deceased.
• Collecting probate assets.
• Protecting the estate property.
• Keeping ongoing businesses of the estate running.
  
• Locating estate debts.
• Determining whether claimed debts are valid.
• Locating beneficiaries of a will or determining and locating heirs of the deceased.
• Converting assets to cash, if necessary, to pay estate debts.
• Paying estate taxes.
• Transferring ownership of property to appropriate beneficiaries or heirs.
  
• Reviewing the work of the executor or administrator.

When a person dies, most of their property is probate property. That means that an asset of the estate must pass through the probate court process before distribution to beneficiaries or heirs. However, there is also property termed "non-probate property" that goes directly to a beneficiary after the individual's death.

Examples of non-probate property are:

• Bank, savings or investment accounts with a named beneficiary.
• Jointly owned property with right of survivorship like real property held in joint tenancy by the deceased and another individual.
• Life insurance policy proceeds.
• Retirement plants payable to a named beneficiary.
• Vehicles held by transfer-on-death (TOD) registration.
• Assets in some types of trusts, like revocable living trusts.
  

The Kansas district court in the area where the deceased person lived before their death or where their property was held handles their probate case. All probate proceedings in Kansas fall under the jurisdiction of the district court. However, either an executor or an administrator handles the day-to-day estate business and moves the estate through the probate process.

• ​Executor:​ If the deceased person left a will, that will usually identifies the individual they wish to serve as the executor of their estate. Generally, the Kansas court accepts this person as the executor.
  

• ​Administrator​: If there is no will, the court will appoint an administrator to undertake the responsibilities of moving the estate through the probate process.
  

In Kansas, the executor or administrator generally hires an estate lawyer. This attorney provides guidance and direction, and answers legal points.

Under Kansas laws, the executor or administrator of an estate is entitled to be compensated. The amount may be stated in the will, or it could be a reasonable amount set by the court. The laws do not set a dollar amount or a percentage of the estate that will be given as compensation to the executor or administrator.

If the deceased left a valid will, and the will specifies an amount that the executor will be compensated, that amount is what the executor will be paid from the estate assets. This is set out in Kansas law, but the named executor has the right to renounce that payment.

If the will doesn’t provide for compensation of the executor, or if there is no will, the Kansas court has discretion to set a reasonable amount to pay the executor or administrator, plus expenses. Kansas law provides that the executor or administrator must receive payment from the estate for all the expenses they incur in handling the estate.

As in most states, there are two different types of estates in Kansas: testate estates where the deceased left a valid will and intestate estates where the deceased left no will or left a will that is not valid.

For an estate to be testate, the deceased must have left a will, and that will must have been correctly created under Kansas law. If the will is valid, the court will appoint the executor named in the will, and the deceased's assets will pass to those beneficiaries named in the will.

To make a valid will in Kansas, an individual must be at least 18 years old and be of sound mind. Kansas does not require that a person jump through complex hoops to prepare a valid will, like notarizing their signature. Rather, the person making a will must:

• Choose the property to include in the will.
• Choose beneficiaries who will inherit the property.
• Select an executor to manage the estate.
• Select a person to serve as a guardian for minor children.
• Choose an individual to oversee and manage the property of minor children.
  
• Draft a will that sets out these factors.
• Sign the will in front of two witnesses.

If a will is not valid under Kansas law, the court treats the estate as intestate, and the assets will be distributed to the heirs as described in Kansas codes.

When a person dies in Kansas without a valid will, their estate is termed "intestate." This can happen if they died without leaving a will. It could also happen if they left a will, but did not get witnesses to sign it or they forgot to sign it themselves and so the will is not valid.

Since, in either case, there are no valid written instructions as to where the money should go, the estate property will be distributed according to state intestacy laws.

Every state has intestacy laws that set out who gets a deceased property when a person dies without a will. These laws leave property to the decedent's close family members. Kansas' intestacy laws assign a decedent's property to their surviving spouse and descendants.

To qualify as "surviving" under Kansas law, the heirs must live for 120 hours beyond the time of death of the decedent. That means that if the decedent dies in an automobile accident, those family members who were also in the car and die within the next few days are not considered to be surviving heirs. Kansas law sets out the heirs in an intestate probate:

• If there is no surviving spouse, 100 percent of the assets go to the descendants in equal shares.
  
• If there are no descendants, the surviving spouse takes 100 percent.
  
• If the decedent left a surviving spouse and descendants, the spouse takes half and the other half of the assets are distributed among the descendants.
  

If the deceased leaves neither a surviving spouse or nor any descendants, the law gives the property to the decedent's parents. If there are no surviving parents, then siblings take the inheritance.

The list of legal heirs as set out in Kansas law continues with increasingly distant relatives. These include grandparents, aunts and uncles, cousins, nieces and nephews. If none of these relatives can be found, the property goes to the state of Kansas.

If a person dies without a will in Kansas, their descendants will receive an "intestate share" of the estate property. But what does the term "descendant" mean? And how much do they get?

The basis for a descendant's share is the number of legal children the decedent had. Kansas considers children legal if they are:

• Natural children born into a marriage.
  
• Natural children born outside of the marriage if paternity has been established.
• Natural children born after the deceased's death.
• Natural children placed for adoption and adopted by another family.
  
• Children adopted by the decedent.
  

Foster children and stepchildren are not included unless they have been legally adopted. Grandchildren are included only if the parent who was the child of the deceased person has died.

Most estates in Kansas go through regular probate procedures, termed formal probate or formal administration. However, Kansas laws also provide for several types of simplified proceedings.

First, if the decedent’s estate qualifies for distribution by a small estate affidavit, probate can be avoided altogether. This is available when the value of the estate is $40,000 or less. In this case, the decedent’s assets can be transferred simply by an affidavit from the beneficiary rather than through a court order.

Another simplified procedure is called Refusal to Grant Letters of Administration. The court can refuse to grant letters (appoint an executor or administrator) if the deceased leaves a spouse or minor children, and the estate:

• Contains only personal property.
• Does not exceed the amount of exempt property.
• Does not exceed the maximum family allowance of $25,000.

The court can also refuse to grant letters if the estate’s value is $50,000 or less, and the decedent leaves no surviving spouse or minor children, or if the family members have waived their family allowance. The availability of the simplified procedure is reviewed and determined by the executor or administrator of the state, with input from the estate's attorney. This happens at the initial conference.

Another type of shortened probate proceeding is termed a Determination of Death. This is available if the estate does not include any real property, and the assets of the estate are not sufficient to meet the total value of all creditors' demands against the estate. Probate can be avoided, but any will is filed at the same time with an affidavit. If assets are discovered later, the will is probated, and the assets distributed to beneficiaries.

Death taxes that must be paid when a Kansas resident dies include the federal estate tax and the Kansas inheritance tax.

The federal estate tax is based on the value of the assets in the taxable estate of the deceased. The taxable estate is not the same as the probate estate, since it includes not only probate assets, but also non-probate assets. The federal estate tax is charged on the net value of the estate after some deductions and exemptions are applied. Federal exemptions are so large that many estates will not owe federal estate taxes.

The second type of death tax, the Kansas inheritance tax, is charged not to the estate but to the beneficiaries or heirs. This tax is based on the value of the assets someone inherits from the deceased. Some jointly held real property, life insurance and certain types of transfers by the decedent before death can be taxed.