What is Probate and When Do I Need It?

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.

---

In most cases, if the decedent owned property that had no other names attached, an estate must go through probate in order to transfer the probate to the beneficiaries. These items might include bank accounts, investments, homes, other real estate, vehicles, etc.  Assets that generally do not go through probate are 1) jointly owned assets that transfer to the surviving owner; 2) assets that have a valid beneficiary designation; and 3) assets that are in a trust.

Not every licensed attorney is well-versed in probate law, so be certain to quiz your attorney on his or her experience. An attorney lacking experience in probate law can cause you unnecessary and costly delays. You can ask questions along these lines:

1. How many probate cases have you handled the last two years?
2. I want to handle a lot of the probate work myself, to keep fees down. Are you willing to work with me?
3. How do you charge for your work: by the hour, a flat rate, or some other way?
4. Do paralegals do some of the work? If so, how do you charge for their time?
5. How many estate tax returns have you prepared?
6. How long, approximately, will it take to go through probate?
7. What is the anticipated cost?

You will be working closely with your attorney and his or her staff throughout the probate process. It is important that you feel comfortable with their communication style.  Your legal team should be responsive to your questions at all points during the probate process.

For more information on probate matters, contact Davis & McCann, P. A., Dodge City, KS. We are members of Wealth Counsel, a national consortium of Estate Planning Attorneys and focus our practice on providing clients with the best legal advice on estate planning, Probate, Trust Administration, Medicaid and Long-term Care Planning, Family Business/Small Business Succession Planning, Real Estate Transactions, and related matters.