When your loved one dies, an experienced probate attorney can be a great asset. If your loved one had a will then there should be a person named to be in charge of wrapping up the estate, called an Executor. The Executor is generally a surviving spouse, an adult child, a trusted friend or relative, or a trust company named in the will. If your loved one had no formal will appointing an Executor, a court appointed Administrator may be required to pass assets on to his/her heirs at law. The Executor or Administrator has a special responsibility to act in the best interest of the Estate beneficiaries and see that the Estate assets and money are not wasted.
If you are an Executor or Administrator, one of the smartest ways to ensure you are acting in the best interests of the Estate beneficiaries is to hire an experienced probate attorney. Your attorney should be willing to provide you with a basic education of the probate process so you can determine which tasks you can handle independently and which ones will require professional guidance. The Estate is responsible for paying the attorney fees, so there should be no personal cost to you. Hiring a probate attorney who has good communication skills and makes themselves available to you is the ticket to a successful estate administration.
The following is a sample of services an experienced probate attorney should offer Executors or Administrators during the probate process:
1. Assist with obtaining copies of death certificates and a dated obituary notice and/or newspaper articles.
2. Coordinate meetings with the decedent’s family and/or beneficiaries, as necessary.
3. Advise on checking the contents of any safe deposit boxes and on obtaining copies of marriage and birth certificates.
4. Help with compiling a list of heirs, next of kin and beneficiaries.
5. Review the decedent’s will with the Executor/Administrator and decedent’s family to determine whether probate is needed and if so, what probate proceeding is most appropriate.
6. Proceed with probate filing, if no trust was created.
7. If necessary, obtain letters testamentary or letters of administration for the executor/administrator from the court.
8. Assist with inventory of tangible real estate property and obtaining real estate deeds, mortgages, leases, and tax information, as well as provide guidance with inventorying and securing personal items such as cars, trucks, boats, recreational vehicles, mobile homes, motorcycles, furniture, fine jewelry, art and personal contents of the home(s).
You know you need to do your estate planning but you have a problem: a “problem child” more specifically, who has caused a kink in your plans. If you have an adult child with a history of mismanaging their life, it’s likely you’ve wrestled with HOW or IF to include them as a beneficiary of your estate.
Having an adult child who struggles through life can complicate an otherwise simple estate plan. When our clients are in turmoil over how to include a problem child in their estate, their adult child usually has demonstrated a weakness in one or more of the following areas:
• Gambling addiction
• Drug or alcohol addiction
• History of criminal activity
• Inability to hold steady employment
• History of financial mismanagement
• Mental health issues
• History of unhealthy relationships or marriages
• History of causing unnecessary drama with other family members
Sadly, if you fret that one of your children will be a problem during the administration of your estate, your worries probably are justified. Death does not often bring out the best in people. The stress that arises after a death can heighten behavioral problems. Here are a few things you can do to reduce the chance of your child creating problems during the administration of your estate:
1. Experience matters. If you suspect that one of your children will be difficult during your estate administration, hire the best estate planning attorney you can find. There are many things you can do yourself, but preparing your own estate plan should not be one of them. Experienced estate planning attorneys possess knowledge of sophisticated legal options that rarely are offered to you on internet sites or by attorneys with little or no estate planning experience.
2. Hire a professional fiduciary. If you cannot find anyone to serve as the executor or trustee of your estate, consider this an indicator of brewing problems. It may mean one of your kids has a well-known difficult personality or reputation. If you find this situation to be true, consider hiring a professional advisor or trust company to manage your estate. A professional fiduciary may cost more, but in the long-run it will save legal fees and stress. Professional fiduciaries are accustomed to handling disgruntled family members.
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
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.
Aunt Ethel died a few weeks ago. Her remaining assets are fairly modest. Their value doesn’t justify going through the expense of a full probate. What’s the family to do if the beneficiaries still want those remaining assets? How can the assets be transferred to the beneficiaries without costing an arm and a leg?
Enter the Small Estate Affidavit.
In Kansas, if there is no real estate involved (including minerals) and the personal property of a decedent (a/k/a deceased person) is valued under $40,000, a Small Estate Affidavit can be used to transfer the estate assets to the beneficiaries. Small Estate Affidavits are forms used to grant authority to a person (usually an executor or beneficiary named under a Will or an heir of the decedent) to transfer and take responsibility for a deceased person’s personal property assets. However, if the value of the personal property exceeds $40,000, or if real estate is owned in the estate, a different probate proceeding will be required to transfer the estate assets.
If the probate process confuses you, you’re in good company. Here are some common misconceptions surrounding probate:
1. If you have a Will, your family will not have to go through a probate. Not true! In fact, if you do Will-based planning, you are planning for a probate. This means your estate will go through a court process, open to public examination, before your beneficiaries will receive their inheritance. According to a 2018 EstateExec survey, on average it takes almost 16 months to settle a U. S. estate. That’s a significant wait time for beneficiaries to receive the assets you intended them to have.
2. Probate is a simple and speedy process. While this sometimes can be true with uncomplicated estates or low value
Q: If I add my child’s name to the title of my house, wouldn’t that be the easiest way to keep my house out of probate and transfer it quickly to my child after my death?
A: The answer to your question is a solid “maybe”. Your personal circumstances will dictate whether this estate planning strategy is the best move for you.
Adding your child’s name to your deed could speed the transfer of that asset to your beneficiaries, and keep it out of probate. But, before you run off and put your child’s name on the title of your house you should consider the risks.
1. By adding your child to the title of your home, you have made a gift that is subject to gift taxes. The gift is likely far below the current federal gift tax exclusion amount, so you shouldn’t have to pay gift taxes. However, you may need to file a gift tax return if the gift is over the annual exclusion amount.
2. If you need KanCare (Medicaid) assistance to pay for nursing home care within 5 years of adding your child’s name to the deed, you could be penalized when requesting benefits.
3. If your child dies before you, his/her interest in your home becomes part of his/her estate. This interest in your home will be subject to his/her liabilities and would pass to his/her beneficiaries as named in your child’s own estate plan. Someone you don’t trust could become the new co-owner of your home.
4. If you decide to sell the house and move, your child could legally refuse to transfer ownership back to
You’ve been named in a Last Will and Testament as an Executor of a Kansas Estate, so now what do you do? Before you begin your role as Executor, here are a few things you might want to know.
As Executor, you have the responsibility of distributing the assets of the Estate to the intended beneficiaries, pursuant to the decedent’s Last Will and Testament. You must understand complex legal and/or financial concepts during the course of your job. As a result, Executors should hire an experienced probate attorney to assist them with the probate process and help them avoid costly mistakes. Here is a basic summary of what you can expect the probate process to include:
Probate is a judicial process whereby the decedent’s assets are transferred to his or her heirs or other beneficiaries. Probate also can be referred to as an estate administration. In Kansas, your estate will fall under one of two categories: testate or intestate. If the decedent had a Last Will and Testament, he or she would have a testate estate. An intestate estate occurs when the decedent died leaving no Last Will and Testament and the state laws of intestacy determine who is entitled to the decedent’s assets.
Typically, the surviving family members of the decedent will seek the counsel of an experienced probate attorney to navigate the probate process. The attorney will determine whether the Last Will and Testament is valid, conclude whether a probate is necessary, and will advise the Executor or Estate Administrator in his or her duties.
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