This page is a description of probate procedures to move property, including real property (i.e., your home) when a person passes away. “Probate” is a court-supervised process of moving legal title from a person who has actually died (the “decedent”) to the person’s heirs. Probate is essential to protect the personal assets in order to pass them to the decedent’s beneficiaries, devisees, and even their creditors. An organized transition of the assets is done after taxes, debts and other procedural processes are conducted.
Is it Really Necessary to Go Through the Probate Process?
Yes, probate is a necessary part of estate management, unless the decedent did not have any kind of property to be moved at death through probate. A person might take actions with the titles to their property (or life insurance policies) or through certain contracts to stay away from probate while alive, such as the following (view our Alternatives to Wills and Trusts):
- Giving away property;
- Putting residential property in a living trust;
- Setting up joint accounts with right of survivorship;
- Developing pay-on-death or transfer-on-death (TOD or beneficiary actions) designations; and
- Naming beneficiaries of life insurance or retirement accounts (IRAs).
Just how Does the Probate Process Work?
The property of the deceased is held and managed by the administrator (i.e., their personal agent) throughout the management of the estate. The personal agent makes distribution of the estate when the court of probate accepts the purchases made and expenses paid and the recommended distribution timetable.
Kansas has several guidelines relating to timelines on exactly how quickly an estate may be closed and circulation made to the successors or recipients. Nonetheless, it typically takes a year or even more to complete the management.
The following are steps in probate administration:
- Employ a legal representative to represent you. Hey, get an attorney already!
- Make an application for Letters Testamentary if there is a will admitted (or secure Letters of Representation without a will).
- Post notification to the creditors of the deceased. The first date that the newspaper has the publication in its starts the time period for creditors to submit their cases to the court and the personal rep.
- Find and appraise the assets of the deceased.
- Conduct the estate and sell any property if funds are required to pay costs.
- Pay debts, taxes, creditor claims, and expenses.
- Prepare a list showing earnings and disbursements.
- Get court approval for distribution and close estate.
Creditors’ Rights and the Inventory of Debts
The probate court functions as an central, organized place where creditors can perfect their claims and look for payment. Additionally, the personal agent can collect repayment of any financial obligations that others had been obligated to repay to the decedent, in addition to seek the recovery of funds owed to the deceased by others.
These claims by creditors and certain allocations to family members (probate laws allow certain persons, such as a spouse, to get property first – such as the home) will be paid by the personal representative before the heirs can get their distributions. If there are not ample assets to pay all claims and allowances, they are paid in proportion by specific concern classifications (for instance, the funeral costs must be paid previously to general claims).
What Taxes are Owed?
A crucial function of probate is to figure out with certainty any sort of tax responsibility. Our estate planning (trust and will) lawyers can aid you via this procedure. Under Federal and Kansas laws, there are numerous particular issues that can trip you up.
Probate estates, as a matter of course, includes the repayment of certain expenses. The costs in the typical estate fall under four major categories.
- Bond Premiums: The probate estate could need to pay for a bond for the individual representative to ensure the proper handling of the estate. All distributees of the estate or the decedent in the will may waive the need of a bond if allowed by the court.
- Publication costs: A notice to creditors should be posted announcing that the estate has been opened. A notice is provided to the public of the intent to File a Last Settlement or Statement of Account. This should be published just before the estate can be shut unless it is waived by the heirs.
- Court Costs: Every estate has to pay the court fees.
- Individual Agent’s Compensation and Lawyer’s Charges: our legal representatives will certainly aid you determine the appropriate fees for your estate.
Real Estate Title
The administration of a decedent’s probate estate serves to develop clear title to any kind of property which the deceased might have possessed at death. Real estate passes directly to one’s inheritors if a will is admitted to probate. The individual rep will need to obtain a court order to take possession of, or sell, the real estate unless the will offers the individual rep that authority.
It is not possible to pass the title to real estate unless the property goes through the probate process (or unless other probate-avoidance techniques, such as a Trust, are used). In Kansas, probate usually is opened and carried out and a will certainly could be filed within one year after the decedent’s death.
In a similar way, lenders have been known to open an estate so that they could force the sale of a piece of property within a year of the date of death. Nevertheless, if an estate is probated, the time period where the title to the real estate can be so affected is decreased to about 6 months after the very first publication in a paper of good circulation.
What about the Spouse (assuming no will, of course)?
In Kansas, the partner of a decedent is qualified to certain rights, which include rights in the primary home. The surviving spouse can choose these rights in lieu of what they would receive in a will (or trust, unless they have actually consented to the terms therein).
The spouse has certain rights (known as exemptions) to the house, personal property, one car and other property to help them with the day-to-day living.
What about the Spouse (assuming there is a will)?
If the decedent leaves a will where it gives the partner less than the spousal share, the partner may, within a restricted time, choose to “take versus the will.” The partner could then get the statutory share rather than exactly what was supplied in the will. The court of probate is needed to alert the enduring partner of this right of election quickly after the will is probated.
A surviving spouse can not be simply disinherited unless they have done something specific to release their rights. These rights can be released via a contract (including a specific waiver in a will or a trust), including a divorce decree. Another way is through a prenuptial agreement (not including retirement assets, which must be waived after marriage).
This election for a spousal circulation goes through the claims of lenders and estate expenses, and is in addition to the survivor’s legal allowances and excluded home. Other home gotten by the survivor away from probate from decedent (such as life insurance, joint home and depend on properties) offers to counter against the spousal share.
“Left out” partners, or those which were married after the deceased’s will was performed, may assert an intestate share of the estate. In specific instances, similar provisions are also included for any sort of kids who could have been born after the will was carried out.
Streamlined Probate Alternatives
There is a procedure under Kansas estate regulation that permits a decedent’s estate to be conducted rapidly. Nevertheless, no real property can already existing under this treatment.
Is A Lawyer Necessary in Probate?
Yes, you better believe it (what did you think us to say?). A legal representative is needed to stand for the individual agent in both monitored and independent managements in Kansas. A legal representative could assure that all due dates are fulfilled and avoid errors and hold-ups. A legal representative can in some cases aid the process to family members to stop arguments among them over different issues.
Some folks could submit tiny estate sworn statements and letters of rejection for partners, small children, or lenders without lawyers. Yet utilizing a legal representative can avoid pricey errors, specifically if property is entailed.
One last piece of advice. Our highest fees have come from helping people “clean up” estates that they tried to settle without an attorneys help.
The Eastman Law Firm
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You can see our Probate page here.