When Bob and Laura married, they both had children and assets from previous marriages. They had new wills prepared, with each leaving their separate assets to their own children, but they did not sign a consent to one another’s wills. When Bob died ten years later, Laura’s attorney advised her that, as a surviving spouse in Kansas, she was entitled to a percentage of all of Bob’s assets—including the 300-acre farm that had been in his family for generations. Although she knew Bob had wanted the farm to go only to his children, she felt that she and her children had a right to part of it. She decided to contest Bob’s will, prompting a bitter and expensive court battle. Eventually Laura won. But, the farm had to be sold to pay the expenses, and the closeness the family had developed during Bob’s lifetime had been destroyed.
Second marriages, or even first marriages that occur later in life, can be wonderful and fulfilling but they should be entered into with caution when it comes to preserving family assets. In the above scenario, Bob’s farm had been in the family for generations. Bob and Laura had discussed that Bob wanted the farm to stay in his family after his death, but Bob’s will was not properly prepared to ensure that would happen. Because Bob and Laura had been married for ten years, Kansas law states that a surviving spouse who had been married 10 years but less than 11 years may receive 30% of the augmented estate of the deceased. Kansas Statute 59-6a202 offers a sliding scale to provide for the surviving spouse according to the number of years the couple was married. For example, if the couple had been married for 5 years, but less than 6 years, the surviving spouse would receive 15% of the augmented estate of the deceased; and if the couple had been married for 15 years or more, the surviving spouse would receive 50% of the augmented estate of the deceased.
Additionally, a surviving spouse is entitled to the homestead (residence) after the death of their spouse, unless otherwise agreed upon in their wills or in a pre- or postnuptial agreement. According to Kansas Statute 59-6a215, “a surviving spouse is entitled to the homestead, or in lieu thereof the surviving spouse may elect to receive a homestead allowance of $50,000. The homestead or homestead allowance is exempt from and has priority over all demands against the estate. The homestead or homestead allowance is in addition to any share passing to the surviving spouse by way of elective share.”
It’s finally summer. The kids are out of school and now is the time to visit the family vacation home for some rest and relaxation! If you’re like most people, your vacation home probably is located in a different state than your primary residence. As an owner of a vacation home, do you know how it will pass after your death to your heirs?
When someone dies in Kansas, any property owned in their individual name and without a Transfer on Death Deed will require a probate proceeding in order to transfer ownership to their heirs or beneficiaries. However, Kansas probate only applies to Kansas property. Real estate owned outside of the state—like a vacation home or investment property—will require a separate probate in the state where the property is located, known as an ancillary probate.
If the vacation home or investment property is put into a Trust during the owner’s lifetime, however, a probate can be avoided and the property can pass to whomever is named in the Trust. Even out of state
We frequently are asked to review old Wills for new clients. Many of those Wills are technically correct, but lack many of the “what if” scenarios that a more experienced estate planner would consider mandatory. We understand how this happens because when estate planning isn’t an attorney’s primary focus, it can be difficult to stay up-to-date on the current trends and recommendations of language that should be included in your Last Will and Testament. To ensure your Last Will and Testament provides the best protection for your estate and beneficiaries, here are some of the most common things you should be on the look-out for:
1. Does your Will name an alternate Executor or Trustee? Should your preferred Executor/Trustee be unable or unwilling to serve and you have no alternate named to serve in their place, it may be necessary for the Court to appoint a successor Executor/Trustee and the appointed Executor/Trustee may not be someone you would want handling your estate affairs.
2. Does your Will name contingent beneficiaries? It’s important to not only name someone to receive your estate assets, but also to have a contingent beneficiary in the event your first named beneficiary predeceases you. Failure to name contingent beneficiaries can result in your estate assets being distributed to individuals or organizations whom you would not have chosen yourself.
3. Would you have a taxable estate and if so does your Will include tax planning? Inclusion of specific tax planning language can save your beneficiaries thousands of dollars in unnecessary taxes, if your estate is found to be taxable. We recommend including tax planning language for anyone who is at or near the current taxable amount ($11,400,000 in the year 2019). Only an attorney familiar with tax planning should draft your estate planning documents if you believe your estate may be at or near a taxable level.
Q: My uncle recently died. I received a notice from his family attorney stating I am a beneficiary in my uncle’s estate. Am I also an heir? What exactly do these terms mean?
A: Under Kansas law, a beneficiary is a person or organization that receives money or property because someone specifically named them in their Will or Trust. In your case, because you’ve been notified that you are a beneficiary, your uncle mentioned you in his Will by name to receive something from his estate. The item(s) being given could be things like money, property, or personal items like jewelry or a family heirloom. Beneficiaries can include a person, charity, or organization.
An heir is a relative who would inherit under the laws after the death of someone. If the deceased person (also known as the decedent) did not have an estate plan in which he or she named beneficiaries then the heirs would inherit the property. What property an heir is entitled to after the death of a decedent is determined according to the laws of the State that the decedent was a resident of when he or she died. In Kansas, an heir could be a spouse, child, parent, sibling, niece or nephew. For instance, if an unmarried individual dies in Kansas and does not have children, Kansas law states that their property is to be distributed equally to their parents. One common misconception is that if a person in Kansas dies and they are married with minor children, all of their property will be distributed to their spouse. This is not true. Instead, half of the property will be distributed to their spouse and half to their minor children. Oftentimes, people want their property to go to individuals other than their heirs. This is one of the reasons why it is a good idea to have an estate plan in place and to know who your heirs are if you don’t.
An important thing to note is that a person can be both a beneficiary and an heir. In fact, most Wills and Trusts are set up by individuals leaving property to their heirs who they are naming as beneficiaries in their estate planning documents. For example, a child named in a Will set up by their parent is a beneficiary of the Will and an heir of their parent.
For more information on beneficiaries and heirs, contact Davis & McCann, P. A., Dodge City, KS. We are members of Wealth Counsel, a national consortium of Estate Planning Attorneys and the National Academy of Elder Law Attorneys (NAELA). We focus our practice on providing clients with the best legal advice on Estate Planning, Medicaid and Long-term Care Planning, Family Business/Small Business Succession Planning, Probate, Trust Administration, Real Estate Transactions, and related matters.
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