Wichita, Kansas Probate Frequently Asked Questions

The following information includes frequently asked probate and estate planning questions. The answers stated are general in nature and are not intended to apply to every estate planning or probate situation. Each case is different and carries its own set of circumstances which must be taken into consideration by competent legal counsel. By contacting Morris, Laing, Evans, Brock & Kennedy, Chtd., you can receive a personal consultation regarding your specific situation.

What is Probate?

Probate is a process whereby the Court supervises the transfer of assets from the deceased person to his or her heirs, and requires the filing of particularized and complicated legal forms. The Wichita, Kansas probate attorneys of Morris, Laing have particular expertise and experience in the area of probate and estate administration, and are able to assist with the following types of probate matters:

• Petition for probate of estate
• Conservatorships
• M-706 estate tax preparation
• Will and trust contests
• Estate and trust administrations

How is a Will probated?

The following is a simplified outline of the general probate process:

• The original Will is deposited with the Court.
• The Executor named in the Will or Administrator is appointed. Executors and Administrators are commonly referred to as Personal Representatives.
• The Personal Representative files a Petition for Probate of the Estate.
• For approximately four months from the date of the Petition for Probate, creditors of the Estate can file claims against the Estate. This would include any prior creditors or judgment holders, debts resulting from last illness, funeral expenses, taxing authorities, etc.
• During this time period, the Personal Representative identifies and collects assets of the Estate (i.e., all bank and security accounts, debts owed to the Decedent, property owned by the Decedent, etc.). The Personal Representative has to maintain the assets in good condition, which includes maintaining insurance coverage, collecting rent, protecting assets from theft or damage, etc. The Personal Representative may also liquidate assets such as cars, real estate, etc. during this time.
• When the four-month claims period has expired, after all assets have been collected and real property sold, assuming no problems have presented themselves (such as the Will being contested), the Personal Representative then files a petition with the probate court to allow a distribution of all remaining assets to the beneficiaries/heirs, and files a detailed accounting with the Court setting forth all monies received and disbursed, how assets were invested, and the proposed plan for distribution.
• If the Court approves the plan, the Personal Representative then divides the assets as instructed in the Will, or, if no Will exists, as required by statute.

The minimum amount of time for completion of the probate process is approximately six months, but it normally takes longer. Reasons for delays can include Will contests, property cannot be sold, claimants not being notified in the original four-month claim period, etc.

Are there different types of Wills?

There are many types of Wills:

• A Double Will is one in which two people join together, leaving their individually-owned property and estate(s) to the other. This type of Will is also called a Counter Will, Joint and Mutual Will, or Reciprocal Will.
• Holographic Wills are entirely handwritten, dated and signed by the testator.
• A Living Will, Medical Directive or Health Care Directive is one that authorizes the continuance or cessation of life-sustaining medical treatments from an individual who is incapable of making that decision due to debilitating circumstances.

The Wichita, Kansas estate planning lawyers of Morris, Laing, Evans, Brock & Kennedy, Chtd., can help you or a loved one decide which type of Will is most suitable.

Who should make a Will?

Every adult person should consider making a Will. Each year a large number of people die without Wills, leaving major decisions in the hands of the state. Wills are especially important for parents of children who are under eighteen, because these documents provide arrangements in advance for the children's financial support and/or appointed guardian. In the absence of a Will, any property distributed to minor children could be subject to an expensive court-appointed guardianship, which could greatly affect inheritance. Also, in some states, if the decedent was married and childless, his or her parents could be entitled to share the deceased's property with the surviving spouse, if not alternatively predetermined in a Will.

How does a trust work?

Trusts are the process by which the grantor transfers legal ownership to a person or institution (the trustee) to manage the property for the benefit of another person (the beneficiary).

Trusts create a fiduciary relationship between the trustee and the beneficiary. The trustee must act solely in the best interests of the beneficiary when dealing with the trust property, and the trustee is legally accountable to the beneficiary for any damage to his or her interests. The grantor may act as the trustee himself or herself (retaining ownership instead of transferring the property, and may also name himself or herself as one of the beneficiaries of the trust.

What about Health Care Provisions and Powers of Attorney?

The State of Kansas extends the delegation of decision-making power to cover health care issues, including the withholding or withdrawal of life support treatment, by means of a Power of Attorney for health care. This Power of Attorney gives you the right to designate an agent who can make treatment decisions for you in instances where communication is impossible because of your medical condition.

In addition to health care considerations, it is also important to have a power of attorney available to handle various legal and financial matters in the event you become mentally incompetent. For example, a surviving spouse can be given a Power of Attorney to handle an incompetent spouse's salary checks and Social Security benefits.

What are Estate (Death) Taxes?

Estate tax may apply to your taxable estate at your death. Your taxable estate is your gross estate minus allowable deductions. Your gross estate includes the value of all property in which you had an interest at the time of death, and will also include the following:

• Life insurance proceeds payable to your estate or, if you owned the policy, to your heirs
• The value of certain annuities payable to your estate or your heirs
• The value of certain property you transferred within 3 years before your death
• Trusts or other interests established by you or others in which you have certain powers

The allowable deductions used in determining your taxable estate include:

• Funeral expenses paid out of your estate
• Debts you owed at the time of death
• The marital deduction--generally, the value of the property that passes from your estate to your surviving spouse

If you or someone you know in Wichita, Kansas, or within the surrounding cities and counties of Kansas needs the assistance or legal counsel of an experienced probate lawyer, contact Morris, Laing, Evans, Brock & Kennedy, Chtd., today at 866-286-4316, or use the contact form provided on this site to schedule your initial consultation.