What is Probate
The Kansas Bar Association defines it as “Probate is a court procedure where the validity of a will is proved or disproved. It involves all estate administration proceedings. When a person dies, all property, other than property passing directly to others (such as property held in joint tenancy, life insurance proceeds, and retirement plans payable to a named beneficiary), may be subject to a probate proceeding. An estate is generally probated in the county where the deceased owned property. If a property is located in another state, additional proceedings are sometimes necessary for that state. There is no natural right to inherit property. This right exists solely as granted by statute. Kansas law provides for the probating of estates to protect all interested parties.”
Basically, the legal system uses this process to make sure the will is valid and to appoint someone to oversee the will and clear up the estate. The person appointed will collect all assets, protect them, pay off any creditors, and then distribute the assets. The probate court is there to protect and assist the appointee to make sure everything goes smoothly and to help transfer legal ownership where necessary.
The Probate Process
The will usually names a person that the deceased would like to oversee the assets and distribution. If there is no one appointed or if a will does not exist, the court will appoint someone to administer it. Then under the guidance and direction of an attorney, the estate will be settled.
- The appointee notifies all heirs and creditors of the probate.
- The appointee will inventory and preserve all assets of the deceased: money, cars, houses, and general possessions.
- The appointee will continue to collect any income due such as interest, dividends, rents if there is a rental property, or mortgage payments if there are any notes due. They can also demand payment should schedule payments to the deceased not be made.
- If the deceased owned a business, the appointee will manage that business.
- The appointee will then get all the information needed on heirs, names, ages, addresses, etc.
- The appointee will complete any pending lawsuits that the deceased may have been party to or that may be brought against the estate.
- The appointee will prepare tax returns and pay any and all taxes.
- The appointee will pay all creditors of the deceased and if necessary liquidate assets, like selling houses and mortgage notes, to raise funds to pay creditors.
- The appointee will legally distribute real property and other assets to the heirs.
The Role of the Probate Court
The court’s job is to administer the estate and oversee the appointed executor or administrator. Make sure the law is followed and when the sale of assets is over certain amounts or debts are over certain limits, the court will make a final determination before sales and payments. As every probate case is different in Kansas City, the time frame varies. Generally in Kansas, anyone who has knowledge about a will has six months after the date of death to bring that information forward. Creditors have four months to file claims against the estate. And final tax returns and payments are due no later than nine months after the date of death.
What Property is Exempt from Probate?
Not all items owned by the deceased are subject to probate.
- Life Insurance will pass directly to the designated beneficiary unless that beneficiary is the estate or the executor.
- Property owned in joint tenancy with the right of survivorship will pass automatically to the surviving joint tenant, although they may have to pay some taxes.
- Bank Accounts with a “Pay on Death” provision will pass directly to the named party.
- Transfer on Death provisions can also be set up for securities, titled vehicles, and real estate.
What about Estate Taxes?
First, there is the Federal Estate Tax, which is based on the value of the assets in the taxable estate. The second type you may see is a State Inheritance Tax. Please consult an attorney and/or a tax professional on these matters.
What happens with Small Estates?
According to the Kansas Bar:
The laws of Kansas provide that when the deceased leaves a spouse or minor children, a simplified proceeding may be used when:
- the estate is made up entirely of personal property
- the estate does not exceed the amount of exempt property
- the estate does not exceed the maximum family allowance of $25,000. It’s called a “Refusal to Grant Letters of Administration.” This proceeding can also be used by a creditor where the deceased person’s estate consists of real and personal property that does not exceed $25,000 and when there is no claim for family allowance by a surviving spouse or minor children.
What Should the Heirs Do?
Other than making efforts to protect property, the KS Bar suggests not disturbing anything and to first consult an attorney in the matter. Your attorney can help you determine if probate is necessary and if it is not. Then help direct the family in the process.