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The information on this site is not conclusive and should not be relied upon as legal, financial, or tax advice. Please consult with an attorney and financial and tax professionals where needed for specific advice regarding your individual situation. See full disclaimer
Use the links below for basic information on the following topics:
A Last Will and Testament (Will) allows you to do three main things: (1) name an Executor for your estate; (2) name a guardian (or guardians) for your minor child(ren) if applicable; and (3) specify who should inherit from you. Wills can simplify the probate process, but Wills do not avoid probate in Kansas.
For more information on Kansas Wills and probate, see Why Have A Will? (In Kansas) or contact the attorney.
Yes—Under Kansas law, a Last Will and Testament (Will) is not effective until it is filed, authenticated, and probated with an appropriate court. But a Will is not filed until after the Testator/Testatrix (person who signed the Will) dies. All Wills should be filed with a court within six months from the date of the death of the Testator/Testatrix, even if the Will is not being probated.
For more information, see When & Why File a Will in Kansas?
For assistance filing or probating a Will, please contact the attorney.
Trusts avoid probate; Wills do not. Probate is the court process required to effectuate a Will (Last Will and Testament), appoint an executor or administrator, and reassign property to heirs. Property held in trust is governed by the trust code (not the probate code). By avoiding probate, trusts can save time, cost, and preserve privacy if properly set up and maintained. Trusts can also govern the method and timing of distributions and can address unique needs. Trusts require more initial effort to set up than wills, which don’t require the same setup work.
For more information about trusts, see “Revocable Living Trusts – Kansas Law Basics” or contact the attorney.
A trust is a declaration or agreement regarding how property is to be owned and distributed to beneficiaries. A trustee is given authority to carry out the instructions of the trust without the need for probate court or attorneys.
A living trust is created while the trust maker is living (rather than at death such as through a will and/or court procedure).
If a living trust is revocable, it can be amended, revoked, or restated by the trust maker (called settlor) while they are living and competent or as specified in the trust document.
For more information about trusts, see “Revocable Living Trusts – Kansas Law Basics” or contact the attorney.
A trustee can act without a court or attorney; therefore, a trustee should be both capable and trustworthy (hence the name “trust”). A trustee is a fiduciary and must understand and follow the trust document and related laws.
Trustees can be family members, friends, or professionals. Often, the trust makers (called settlors) act as their own trustees during their lifetime and then pass the authority to a co-trustee or successor trustee when the settlors die or become incapacitated.
Being a trustee can be time-consuming and can invite criticism and demands from family members and others. Settlors should consider these and other aspects carefully when selecting a trustee.
For more information about trusts, see “Revocable Living Trusts – Kansas Law Basics” or contact the attorney.
Trusts require work upfront to be effective at death. A trust is like an empty box; to be effective, a trust must be properly funded (i.e., property transferred into the trust), so it can be distributed at death as directed in the document.
For more information about trusts, see “Revocable Living Trusts – Kansas Law Basics” or contact the attorney.
A Living Will Declaration—also known as an ‘advance healthcare directive’—is a patient’s instructions (prepared in advance) regarding medical and life-sustaining treatment in emergency or terminal situations. The declaration is only used if the patient is unable to make and communicate such decisions when needed. Family members do not have default/statutory authority in Kansas to make such decisions for the patient. Living Will Declarations are governed by the Kansas Natural Death Act.
Powers of Attorney allow a principal (person granting the power of attorney) to authorize an agent to act for the principal for specific purposes. Under Kansas law, health care power of attorney allows an agent to make medical decisions for the principal; and a general power of attorney authorizes an “attorney-in-fact” (agent) to manage finances, property, and other legal matters for the principal. A durable power remains effective when a principal is incapacitated. All powers of attorney end when the principal dies.
Without a power of attorney, a spouse or other family member does not have statutory authority under Kansas law to make medical or other decisions for an adult person; a guardian or conservator is the court-appointed equivalent and only option if no power of attorney exists.
For additional information or assistance, contact the attorney.
If a person dies without a Will, or no Executor is named in the Will, or the named Executor(s) is(are) unable or unwilling to serve, the Court chooses a replacement in the following order:
(1) The surviving spouse or next of kin, or both, or some person(s) selected by them.
(2) Estate Creditor(s) or a creditor’s nominee.
(3) Any other person selected by the Court, whether interested in the estate or not.
To avoid the above, talk with an attorney about preparing or amending your Will.
Probate typically lasts 6-9 months but it can be shorter or longer depending on the parties and property involved. Often the most time-consuming aspects of probate are the waiting periods related to notice and court hearings. Much can be done during those waiting periods to speed up the process, but the process can take longer if any party objects. Time periods are important in any legal proceeding; in probate, certain time limits permit or bar certain actions. If you have questions about probate (with or without a Will), you are encouraged to get legal advice as early as you can.
For additional information or assistance, contact the attorney.
The costs of probate vary. I generally estimate a standard probate proceeding in Kansas costs between $5,000 and $6,000, though it can be more or less depending on the parties and property involved.
Often the most expensive aspects of probate are the conflicts that arise between parties. Much can be done to reduce overall costs if the parties address potential issues early on.
If you need assistance with probate, please contact me as early as you can.
No. Probate is the court process for re-assigning assets that are “stuck” in a deceased person’s name. Typically these assets are re-assigned to a surviving spouse or children. Some assets transfer at death without the need for probate court procedure (such as to a joint owner or named beneficiary). But heirs and creditors may still have claim to those assets—whether they are reassigned through a probate proceeding or by non-judicial means.
No—Trusts are a method of holding and distributing assets, and there is no minimum requirement of assets for setting up a trust. Professional trustees and executors may have minimum requirements for administering trusts or wills, respectively, but professional trustees/executors are not required.
For more information, see “Who can be a Trustee?”; see also “Revocable Living Trusts – Kansas Law Basics” or contact the attorney.
No—revocable living trusts are not designed for asset protection or Medicaid planning/qualification. Questions about specialized trusts, including Medicaid or tax planning, should be directed to attorneys and professionals who focus in those areas.
For more information about trusts, see “Revocable Living Trusts – Kansas Law Basics” or contact the attorney.
Title ownership and loan obligations are separate concepts, and do not automatically transfer together. For example, when a homeowner dies, and there is still a mortgage, a surviving family member may receive title ownership to the house (through one of several transfer methods), but the new ‘owner’ still must choose to take over or pay the loan.
Assets may need to be sold to pay liabilities (either through probate or by a trustee). Some creditors (such as Medicaid) may also be able to go after assets transferred outside a will or trust (such as through pay-on-death / transfer-on-death to a named beneficiary, joint ownership, etc.).
To schedule an initial planning meeting, where we will discuss the various planning methods, contact the attorney.
I often say, ‘It can be simple for you or simple for those who survive you—pick one.’ That may be an overgeneralization, but the truth is careful planning takes work. The simplest approach (for the preparer) is to do nothing (or possibly prepare a will and other basic documents), and then just let everything go through probate—leaving the administrative burden and cost on surviving family. Additional planning, on the other hand, can streamline things for survivors—allowing them to access and transfer property quickly and without court procedure. But this approach takes time. In any case, it is crucial you understand your options, so you know what kind of ‘simple’ you are choosing.
To schedule an initial planning meeting, where we will discuss the various planning methods, contact the attorney.
Naming a guardian for your minor child(ren) is typically done in a Last Will and Testament (Will), but can be in another document. Parents can name one or more guardian(s) plus ‘backups’ (in case the first is unable to serve). But naming a guardian in a Will is not enough; a nominated guardian must be formally appointed by a court before the guardian has any authority to care for a child.
For more information or assistance with guardianship in Kansas, see Guardianship in Kansas, or contact the attorney.
Children who are 14 years and older must consent to an adoption before it can be finalized in Kansas.
Yes!—Adults may choose to adopt / be adopted for several reasons: closure to a difficult past, solidity to a parent-like relationship, inheritance, family decisions, etc. Whatever the reason, the process requires court approval after important safeguards and requirements are met.
I enjoy helping with adult adoptions. They are simpler than minor-child adoptions, but they are legally binding and important to the people involved.
If you need help with an adult adoption, contact Rick Smith.
Under Kansas law, every Last Will and Testament (Will) should be filed with an appropriate court (either for probate or for preservation) within six months from the date of the death of the Testator/Testatrix (person who signed the Will). If filed for probate, the Will should be accompanied by a petition for the specific type of proceeding being requested. If filed for preservation, the Will should be filed with an affidavit with required information and requesting the Will be preserved for potential future probate. In either case, the original Will must be delivered to the court and notice of the filing must be given to all required parties.
If you need assistance filing or probating a Will, please contact the attorney.
For more information, see When & Why File a Will in Kansas?
Kansas law requires a Last Will and Testament (Will) to be signed in front of two non-interested witnesses. It is also recommended (but not required) to have a notary present. Generally, witnesses should not be family and should not otherwise be named as an agent or beneficiary in your Will or other documents.
For more explanation or assistance with Wills, contact the attorney.
Under Kansas law, a guardian can be appointed for a minor child or for an adult with an impairment who needs a guardian. In either case, the process is similar:
For more information, see Guardianship in Kansas; for assistance, contact the attorney.
Before a Last Will and Testament (Will) can be effective, it must be examined by a probate court and put on public record. Kansas law requires every Will to be filed with the appropriate court within six months of the date of death of the testator/testatrix (person who created the Will). But filing is not enough; it must be filed with a petition that includes required information and a request for the type of probate proceeding desired.
If you need assistance filing or probating a Last Will and Testament, or opening an estate where there is no Will, please contact the attorney.
Under Kansas law, probate is required (with or without a Last Will and Testament) any time property remains ‘stuck’ in a deceased person’s name. Some transfers at death occur by contract or operation of law and do not require probate. Examples of non-probate transfers include trusts, transfer-on-death (TOD) / pay-on-death (POD) to named beneficiaries, joint ownership with survivorship rights, and gifts given during life. But while these transfers do not require probate court procedure, they still may be subject to the claims brought by creditors or others (in or out of probate court).
For assistance with probate planning or avoidance, please contact the attorney.
Under Kansas law, any parent can nominate another person (a proposed guardian) to care for minor children if the parents die. But a nominated guardian must be appointed by a court before the guardian has any authority to care for a child. The nomination of a guardian for minor children is typically found in a Last Will and Testament (Will), but it can be in another document. Parents can name one or more guardian(s) plus ‘backups’ (in case the first cannot be appointed due to death, disability, or other circumstance).
For more information, see Guardianship in Kansas.
For assistance with naming a guardian, contact the attorney.
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