Welcome to Kansas Inheritance Laws
Understanding Kansas inheritance laws is an important part of legacy planning (also referred to as estate planning). In general, inheritance laws govern who inherits the estate of a decedent, under what circumstances, and the extent of their inheritance. In other words, the inheritance laws will decide who receives which property from an estate, and when. In terms of estate planning, inheritance laws dictate how an estate must be distributed in the absence of a valid will. So, if a decedent decides to take matters into his or her own hands by executing a will, those same inheritance laws will dictate the distribution of the decedent’s estate if the will is found to be invalid for some reason. For example, inheritance laws may determine how much of an estate is subject to the Kansas elective share. The elective share is an additional amount of property a surviving spouse is entitled to, if the decedent’s will does not give the surviving spouse enough property upon the decedent’s death. The elective share is typically between one-third and one-half of the decedent’s estate, depending on the length of the marriage, and whether the decedent had children who were 18 years of age or older at the time of his or her death. For the purposes of determining whether the surviving spouse is entitled to the elective share, inheritance laws will define what makes someone a spouse, what constitutes a marriage, when the marriage began and ended, when property was acquired, how community property should be divided, etc .
Kansas is considered a dower and curtesy property state. This means that individuals who are married have a property right to certain property acquired by the other individual during the marriage (after 1978, Kansas is no longer a dower and curtesy property state, instead adopting the Uniform Marital Property Act, which views marital property acquired after the date of marriage as marital property, and marital property acquired by a spouse as owned by that spouse). The elective share is similar to the dower/curtesy property rules in Kansas. Each provides a surviving spouse with a statutorily-mandated amount of property from the deceased spouse’s estate. Inheritance laws apply to intestate succession, as well. When a decedent dies without a valid will, the estate is distributed according to the Kansas intestate statutes. In Kansas, the intestate succession statutes divide the estate into two sections: (1) real property, and (2) personal property, which usually includes everything else. The statutes list the individuals who are entitled to inherit from that portion of the estate, in a priority order. In other words, they list the first group of people who are entitled to inherit, and then list the individuals who are entitled to inherit, in order of priority (i.e., within the group of people entitled to inherit).
Intestate Succession in Kansas
In the event of a decedent without a will, Kansas intestate succession law determines how the decedent’s assets will be distributed. If the decedent had children, then the children will take the estate. If the decedent did not have children but did have a spouse, the Kansas law dictates that the surviving spouse will receive all of the decedent’s assets if the estate is less than $10,000. If the estate is between $10,000 and $200,000, then the surviving spouse will receive all the property in that amount plus one-half of the property above that amount. If there is no will and the estate exceeds $200,000, the surviving spouse shall receive only all of the personal property up to $10,000 plus one-half of all real and personal property of the decedent and the other half shall be divided between the children of the decedent and the descendants of any deceased child. If the decedent did not have a spouse and children, it follows that the decedent would have other relatives. When that is the case, Kansas law provides that the decedent’s parents, siblings and their children, aunts and uncles and their children (the decedent’s cousins) will take the real property equally. If no family members exist, the property goes to the state. Intestate succession applies only to the assets outside of the probate estate. Real estate owned by a decedent may pass as real estate owned by tenants by the entirety (but not joint tenancy) or community property.
Wills and Estate Planning in Kansas
In Kansas, estate planning refers to the process of anticipating and arranging for the management and disposal of someone’s estate during their life and after death. In its most basic form, effective estate planning intends to lower or eliminate uncertainties over the settlement of the estate, reduce taxes, and maximize the value of the estate by reducing expenses. Estate planning includes a host of interrelated legal documents like wills, trusts, joint ownership and beneficiary designations. In particular estate planning contemplates the specific disposition of possessions and assets upon one’s death and incorporates the management and disposal of property in the event a person becomes incapacitated.
The probate process in Kansas is implemented through various courts depending on the size of the estate. The Probate Court handles the settlement of estates. Small and large estates may exist in probate court or in District Courts, depending on a few factors, including whether the decedent died testate (with a valid will), or intestate (without a valid will), and the value of the decedent’s estate. The probate court does not have jurisdiction over the estates of decedents who died while domiciled outside the state of Kansas.
Wills are among the most common estate-planning vehicles. The specific requirements for executing a will are governed by Kansas law, which provides that any adult of sound mind may dispose of his or her property within the will. A Kansas testator (or testatrix) may provide for any family member, friend or charitable organization through the execution of a will.
The Will is only effective at disposing of property as allowed by the State of Kansas, which will not supersede other estate-planning instruments like Trusts, Joint Tenancy with right of survivorship, and Life Insurance. In addition, regardless of the terms a testator desires, the law will not allow any testamentary disposition of a homestead by a decedent who is survived by a spouse.
Probate Administration in Kansas
The probate process in Kansas begins with a petition. According to K.S.A. § 59-2201, this petition for probate of a will or for letters of administration may be filed by any "party interested." A party interested is any person or entity that could inherit property under the laws of intestacy if the decedent were not to have any will. So for example, if you are significant other, but you were never married and you have no children together, you would not inherit under the Kansas laws of intestacy. You are not a party interested.
Once a party interested files a petition, it is the court that gives the order to probate the will. The court in the county where the decedent resided at the time of death has exclusive jurisdiction as stated in K.S.A. § 59-2202. In the event the decedent did not reside in the state of Kansas at time of death, the court where the decedent owned property will have jurisdiction.
The process is very similar to the process in other states. At the opening of probate, the court will issue citation (notice) to those that hold an interest in the estate. The amount of time in which parties interested have to submit any objections to probate is 30 days. Once that 30 days has passed, the court generally orders the Registrar of Deeds to create a notice to creditors. Those creditors then have 90 days to present their claims.
It is important to note that creditors must present their claim if it is less than a year old from the date of filing. If the creditor fails to present their claim within that year, they may lose the ability to do so. However, in practice, creditors will often times get more time than what is required.
The process itself generally takes around 4 or 5 months from the start of probate to closing of the estate. However, there are many factors that can make an estate take much longer. For example, an estate may take longer if there are any disputes among the beneficiaries as to the will. A dispute itself may cause the probate estate, already of necessity, to become a lawsuit. Other ways that a probate case may run into complications is if there are disagreements between creditors or a special needs beneficiary.
An Overview of Inheritance Tax Law in Kansas
Kansas is one of the states that require the payment of an inheritance tax known for many decades as the death tax. It’s strictly a state tax and this means Kansas makes the rules and collects the taxes.
The state of Kansas makes no distinction between marital inheritance or non-marital inheritance. Common law principles will apply.
There are three classes for inheritance:
Class A is for lineal ascendants:
- Spouse
- Child
- Grandchild
- Great-grandchild
Class B is for collateral relatives:
- Parents
- Brothers
- Sisters
- Grandparents
- Aunt/Uncle
- Nieces/Nephews
- Great-Grandparents
- Great-Aunt/Great-Uncle
Class C is everyone else.
Exemptions include:
- Children of deceased spouse if legacy does not exceed $25 , 000
- Spouse of decedent
- Any Legacy under $500
When the estate exceeds $25,000 then you will have inheritance taxes. Inheritance tax is based on the entire estate less the allowance for spouse.
An allowance for the spouse is determined by using the marital status of the decedent at the time the estate was created and the rate changes depending on the relationship to the decedent. This is fairly easy to estimate because it’s based on common sense.
To determine the exact figures for the exemption rates, you can refer to the Department of Revenue of the Treasury and it will give you the exemptions.
Children and Spouses: Their Rights in Kansas Law
Kansas law provides for certain rights for spouses and children under intestacy laws and those rights override the decedent’s intent when they conflict with one another. Inheritance rights for spouses and children in Kansas vary depending on the probate assets, the relationship between the spouse or child and the decedent, and if a will or trust exists which transfers probate or non-probate assets.
In Kansas, a surviving spouse is first protected by Kansas’s spousal elective share. Every surviving spouse is entitled to a statutory share of the decedent’s probate estate if the decedent intestate spouse has children or a parent living. In these situations, the surviving spouse’s statutory share is one-third (1/3) of the decedent’s probate estate. If the decedent is a single person with no children or other descendants, then the surviving spouse’s statutory share is one-half (1/2) of the decedent’s probate estate.
When there is no surviving spouse, any surviving children are entitled to inherit pursuant to statute. If there is no surviving spouse or children, parents of the decedent will inherit all of the decedent’s probate property. If there is no spouse, children or parents, the decedent’s siblings will inherit. If there is no surviving spouse, child, parent, or sibling, other relatives will inherit under the statute. If there are no surviving relatives, the probate estate will escheat to the state of Kansas.
All property outside of the decedent’s probate estate is considered non-probate property that will pass to the named beneficiaries or the trustee of a decedent’s trust outside of the probate process at the decedent’s death. Under Kansas law, a surviving spouse is entitled to other rights to property before the decedent’s estate pays the elective share. Spousal rights to non-probate property include, property created as joint tenants with the decedent; property held in a revocable trust; and property passing under a beneficiary designation such as life insurance policies, IRAs, 401(k)s and pension plans, payable on death accounts, and transfer on death accounts. It is important to note that the elective share is satisfied from the probate estate first, and any spousal rights to property are only used if there are not sufficient assets within the probate estate to satisfy the elective share.
A surviving spouse can also elect to take possession of one half or one third of the decedent’s household furnishings and vehicles free from the claims of creditors. If there are minor children of the decedent, the surviving spouse has thirty (30) days following the date that letters testamentary or letters of administration are issued, to exercise this right of election.
If a child of the decedent has predeceased the decedent, leaving the decedent’s grandchild or grandchildren surviving, the children of the decedent will inherit per stirpes (by representation). Property will be divided equally among the first generation of descendants below the decedent who survive the decedent (i.e. the children of the decedent), with any deceased children of the decedent dividing their deceased parent’s share among themselves. Therefore, if the decedent has two (2) children who both survive the decedent, they will divide the decedent’s probate estate equally. If the decedent has one child who survives and one child who passes away before the decedent, that living child will inherit 50% of the probate estate. The predeceased child’s share will be equally divided among her children (i.e. the grandchildren of the decedent).
If the decedent does not have surviving children or grandchildren, the decedent’s surviving parent, sibling(s), half-sibling(s), or grandparent(s) will inherit her probate estate pursuant to statute.
Disputes and Challenges in Kansas Inheritance
As straightforward as the rules for inheritance in Kansas may appear, many nuances can lead to conflict among family members. Disputes over wills, trusts, and estate administration are all too common, and the ensuing animosity can lead to rifts that last a lifetime. To avoid these pitfalls, it’s essential to engage in proactive planning with the help of knowledgeable counsel.
Contested Wills One of the most common sources of family conflict during the probate process is the discovery of a longer-lost will. Another situation occurs when a type of will that might be unenforceable under another state’s laws is presented to a probate court in Kansas. If you have a will that might be deceased’s intent, but does not appear to be enforceable in the State of Kansas, your legal counsel will guide you on how to present the will. They will first prepare an initial notice to submit with the will, advising all parties of your intention to bypass the normal process/proceedings and simply attach a notice to the original will and submit the notice to the courthouse for them to file. If there are no objections, then this is the end of the matter. However, if someone is upset with your action to submit the old will, they may object and force you to reopen the property and possibly start the entire process again. With a standard will deposit this is rare and could be easily rectified with an explanation, however with a closed will and estate, there is no way to reopen it as you will eventually have lost the will already on file and it will be hard or impossible to recall what was in it. Keep that in mind when you are planning and interacting with your estate plan.
Executor Disputes The role of executor is both time-consuming and challenging, requiring familiarity with a variety of legal concepts and the ability to deal rapidly with unexpected setbacks. Most people who undertake the job do their best, but this doesn’t always prevent conflict with the beneficiaries. If you want to avoid such issues, choose your executor with care and communicate with him or her so that she knows what you want.
It’s also helpful to keep in mind that even executors who are doing the best job they can are faced with a lot of pressures. The stress of grieving a loved one’s loss can lead a grieving beneficiary to lash out at the executor, despite that person’s best efforts to be fair and honest. Economically, if there are few assets involved, the executor often has limited time to spend tending to the estate, and thus mistakes can be made or left out and misunderstood completely. The best way to resolve grievances against an executor is usually to be upfront about the situation. Sometimes beneficiaries haven’t considered the time investments required, for example, and arrive with an ill-founded picture of how smoothly things are going. In those cases, an honest conversation clarifying what everyone can expect can help minimize friction.
Even with the best of plans, there’s a chance that conflicts between aggrieved heirs could move into litigation. If your inheritance is at stake, seek help from estate planning professionals such as lawyers and financial planners to prepare today.
Legal Help in Kansas
No matter the size of the estate in question, an intricately entangled mess is a possibility. An attorney experienced in these matters will be able to navigate through the estate settlement process, and help to avoid probate litigation whenever possible . Settling an estate can at times be a minefield, with family members, friends and fiduciaries expecting special treatment or wanting to interject themselves into the process. An experienced estate planning attorney is the ideal resource for enabling an easy settlement of accounts and property.