Q: “My mother, who resided in Kansas, died in June. She had a Last Will and Testament and owned several pieces of real estate. She told us children that we would receive an equal share of her estate. How long will I have to wait to receive my share and what situations might delay the distribution?”
A: Because your mother chose to use a Will as her estate planning strategy, her estate will require a probate action initiated by the filing of a Petition for Probate of Will with the District Court in the county of her permanent residence. Filing must happen within six months after the date of her death. Failure to file her Will within this six month period will result in her estate being handled as if no Will existed. Anyone having knowledge and access to her Will may offer it for probate at any time within the six months following her death. Usually, the Executor or Administrator named in her Will is responsible for filing the Petition with the assistance of a probate attorney.
Your Mother’s estate may need to file a federal estate tax return. Kansas currently doesn’t have an estate tax, so no state estate tax return should be necessary, unless your Mother owned property in another state. Tax payments are due no later than nine months after the date of death. For your mother’s estate, these tax returns must be filed and paid (if applicable) no later than next March, unless an extension has been properly requested. Additionally, if your mother owned property in a state other than Kansas, a separate probate action in that state may be required.
After the Petition for Probate of Will has been filed, you generally can expect the Executor or Administrator to be appointed by the Court within 4 to 5 weeks from the date the petition is filed.
If your mother had outstanding debts due to creditors, they have 4 months after they have been notified to file their claims against the estate. Any distributions of an estate will typically not occur until after this time period has run.
Since each estate is unique, no exact time schedule can be given for the length necessary to probate an estate. Distributions to beneficiaries generally don’t happen until the estate is ready to close, but if circumstances warrant it, the Executor or Administrator may do a partial distribution prior to that time.
Some factors that may delay an estate closure and distribution can include:
1. Appraisal of real property, equipment and household items. A certified appraiser is not always available in a timely fashion, especially for rural residents. Certified appraisers are often booked out months in advance, or must travel long distances, so obtaining a quick appraisal for the real estate isn’t always feasible. If family members are contentious, multiple appraisals may be required to satisfy the parties involved, which can add to the delay.
2. Failure to supply prompt or accurate information to the estate attorney. In most probate cases, the probate attorney will need a complete, detailed list of all the assets owned by the deceased person in their individual name at the time of their death, as well as their valuation. This list could include real estate; gas, oil or other mineral interests (regardless of whether they are income producing) and wind energy interests; farm equipment; ownership interest in a corporation, LLC or partnership; investments such as stocks, bonds, or mutual funds; bank accounts and Certificates of Deposit; life insurance policies; capital credits with agricultural, electrical and telephone companies; stored grain; livestock; vehicles, and valuable personal items such as guns, artwork, jewelry, furs, and antiques. The estate attorney also will need the names and current addresses of all known heirs and beneficiaries. While this task doesn’t seem difficult, when it comes to estranged families, it can amount to hours or weeks of additional research.
3. Death benefit claims with insurance companies. Some policies purchased under one company name may have been bought out by other insurance companies and assigned different policy numbers over time. It can take a good deal of time and detective work to track down whether a policy owned by the decedent is still in existence and which insurance company will now need to be notified of your claim.
4. A dispute, legitimate or not, raised from an heir, beneficiary, or creditor. If a Court resolution becomes necessary to settle a dispute, time and expense will be much greater. Even basic negotiations among beneficiaries can cause unintentional delays. We see this most often when some or all of the beneficiaries have farming interests and farm land is part of the estate. If beneficiaries quarrel over the distribution plan proposed by the Executor or Administrator, you can expect a delay in the estate settlement. Although the Executor is ultimately the decision-maker for the distribution plan, most Executors and Administrators are family members or close friends of the decedent who try to accommodate the needs of the beneficiaries as much as possible, pursuant to the terms of the Will.
5. An unfamiliar or unsuitable Executor or Administrator. If the Executor or Administrator tries to handle areas of the estate about which he or she is unknowledgeable, without professional assistance, we’ve found that the amount of work required to correct their mistakes often leads to unnecessary delays and expense. Similarly, if an Executor or Administrator is appointed who isn’t familiar with the decedent’s personal business, it is reasonable to expect more time for information accumulation. Most Executors and Administrator are not full-time estate professionals and therefore, have limited time to fit the estate duties around the normal course of their personal lives.
It is in your best interest as a beneficiary to be as agreeable as possible if you are concerned about the speed of receiving your estate distribution. Again, no two estates are alike and therefore, your neighbor having their estate settled and distributed within 6-7 months is in no way indicative of what you should expect from your mother’s estate. One hard and fast rule, however, is that an estate with assets amounting to more than the legal allowance and debts, taxes and costs may NOT be closed before six months after the date of death.
If you have a question about the Kansas probate process, 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, business formation, family business/small business succession planning, probate, trust administration, real estate, and related matters.
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