Kansas Wills

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Kansas Will Requirements

A Kansas Will can protect your property and family when you die. However, when writing a Last Will and Testament you need to follow the legal requirements. Kansas Wills are regulated by Chapter 59, Kansas Probate Code. Any person who has reached their majority may make a Kansas Last Will and Testament. 59-601

Execution Requirements

A Kansas Willneeds to be:

  • In writing;

 

  • Signed by the testator (person making the Will);

 

 

  • Witnessed by two competent persons.

 

If the testator is unable to sign, then he/she may direct another person to sign in the testator’s presence. 59-606

Can a spouse witness my Will?

No. Any gift made to a witness in a Kansas Will is void, unless there are two other competent witnesses who are not beneficiaries under the Will. However, if the witnessing beneficiary would have inherited under the laws of intestacy anyway, then that beneficiary will still receive the gift (up to the value of the intestate share). 59-604

Should I write my family members’ Will for them?

No. If a person writes or prepares a Kansas Last Will & Testamentfor another, that person is not entitled to any gift under the Will. That person’s parents, children, issue, siblings or spouse are also excluded from being entitled to receive a gift under that Will. These exclusions apply unless:

  • The person who made or wrote the Will is related to the testator by blood, marriage or adoption and the gift is not more than they would receive under the laws of intestacy, if the property passed in that manner; or

 

  • It can be shown that the testator was aware of the Will’s contents and had independent legal advice. 59-605

 

Oral Wills

A testator may only make an oral Kansas Willin his/her last sickness relating to personal property only, if:

  • the Will is reduced to writing; and

 

  • subscribed by two competent, disinterested witnesses within 30 days after speaking the testamentary words; and

 

 

  • at the time of speaking the Will, the testator called upon some person to bear testimony to the dispositions as the testator’s Will. 59-608

 

Due to the complexity of this provision, it would be safer to make a Will that complies with the formal execution requirements.

Restrictions on leaving property to foreign countries

The Kansas probate code prohibits any disposition in a Kansas Will of real or personal property to any foreign country or its subdivision, city, body politic, corporation or trust located or existing under the laws of a foreign country. This does not disallow gifts to religious, educational or charitable organizations for such purposes. 59-602

Does marriage or divorce cancel my Will?

Your Kansas Will becomes revoked if after making the Will, you marry and have a child (by birth or adoption). 59-610 If you divorce after making a Kansas Last Will and Testament, this revokes all provisions in favor of your former spouse. 59-610

Providing for your Pet

The Kansas probate code does not give testators the ability to create a trust or leave a disposition to a domestic animal. The best way to cater for your pet in your Kansas Will is to nominate a beneficiary to receive your pet. This should always be discussed first, to ensure the designated person is prepared to provide for your pet’s care for the rest of its life. You may also like to leave a gift to the carer. However, this bequest can only be in the nature of a gift (ie: you cannot stipulate that the money is to be used for your pet as there is no way to ensure this happens and such a condition may even void the gift).

How can I revoke my Kansas Will?

In order to validly cancel your Will, you must:

  • make another Will in writing (expressly revoking all former Wills); or

 

  • execute some other writing declaring the revocation (this must be executed with the same formalities as a Will); and

 

 

  • either burn, tear, cancel, obliterate or destroy the former Will. 59-611

 

Kansas Last Will and Testament & Probate

There are three procedures for submitting a Kansas Will and Testament to probate depending on the size of the estate and other factors. Find out the details of each probate process and how it affects you.

Is probate necessary?

Yes. A Kansas Will must be admitted to probate in order to validly pass real or personal property to the beneficiaries, unless the court allows Informal Administration or a Simplified Estate. 59-616

Time Limits

A petition for probate of a Kansas Last Will and Testament must be filed within six (6) months of the testator’s death. 59-617

Informal Administration

  • Any person interested in the estate may petition for informal administration under the Informal Administration Act. 59-3302

 

  • Different notice requirements apply, depending on whether the proceedings are intended to transfer real estate or not. 59-3303

 

 

  • If the court determines that the estate can be completely administered under the this act, then it must:

 

 

  • Order informal administration of the estate; and

 

 

  • Order all estate assets to be assigned (after payment of family allowance, debts and expenses) to the beneficiaries under the testator’s Kansas Will 59-3304. The district court may also require an appraisal of the property before making this order. 59-3306

 

 

  • the district court may determine that informal administration is not appropriate due to contested matters, the need for administration, disagreement among beneficiaries or any other appropriate circumstances. 59-3305

 

Simplified Estates

  • If asked, a court may allow the estate to be administered under the Simplified Estates Act, considering a number of actors such as the size of the estate, its nature and solvency and the degree of kinship and wishes of the heirs and devisees. 59-3202

 

  • Once appointed under this Act the executor or administrator must:
    • Collect the deceased’s assets;

     

  • File an inventory and valuation
  • Pay claims of creditors.

 

 

  • The personal representative may also sell, liquidate or exchange personal property without court supervision. 59-3204

 

 

  • The benefit of simplified procedure is the executor or administrator can carry out his/her duties unsupervised by the court. 59-3205

 

Probate Procedure other than Informal or Simplified Estates

  • If the Will cannot be found or has been destroyed or if the court rejects simplified or informal proceedings, then probate proceedings must be commenced.

 

  • In order to commence a probate proceeding, any person interested in the estate (59-2221) must file a petition with the district court. The court will then set a time and place for the hearing. The court may also appoint a ‘proposed’ personal representative in order to conserve the estate until the hearing. 59-2204

 

 

  • If the spouse has signed a consent to the Kansas Last Will, this should be attached to the petition. 59-2220

 

 

  • Notice of the hearing must be given pursuant to 59-2209, unless the court orders otherwise.

 

 

  • Once the Last Will and Testament is admitted to probate, the Court appoints an executor or administrator with the Kansas Will annexed 59-2227. The letters do not issue until the oath and bond (if required) are filed.

 

Person with possession of the Last Will & Testament

The person who has the testator’s Kansas Will in their possession, must file the Will with the appropriate district court within six months after the death. Otherwise, he/she may be liable for the reasonable attorney fees, costs and all damages sustained by beneficiaries under the Will. 59-618

Contesting a Kansas Will

Who may contest a Will in Kansas?

The following persons have the right to issue court proceedings or to oppose the probate of a testator’s Kansas Last Will & Testament:

  • Any heir (person who would benefit under the Kansas intestate succession laws);

 

  • Devisee or legatee (any beneficiary named in the testator’s Last Will). 59-2224

 

When contested, the court will require testimony of at least two of the subscribing witnesses either in person, by affidavit or by deposition. 59-2224 The court may admit the testimony of other witnesses to prove whether the testator had capacity and whether the Will was executed properly. An objection to the probate of a Kansas Willmay also be filed after probate has been granted 59-2401. This is done by way of an appeal against the order admitting the Will to probate. The appeal must be taken within 30 days from the date of entry of the probate order. Usually the grounds for challenging a Will include:

  • Lack of testamentary capacity;

 

  • Fraud, coercion, duress or undue influence;

 

 

  • Execution requirements not complied with.

 

If the issues are proved, the Court may refuse to probate the Kansas Will or set aside the probate order.

Excluding Spouse or Children from your Kansas Will

Disinheriting your spouse or child from your Kansas Last Will and Testament is not as simple as omitting them from your Will. The probate code provides certain entitlements to such persons.

Excluding Your Spouse

Regardless of your Kansas Will, your spouse is still entitled to:

  • an elective share of your estate depending on the length of your marriage. For example, 6% if you have been married 2 years, 15% for 5 years, 30% for 10 years and 50% if your marriage has lasted 15 years or longer 59-6a202. A further supplemental amount of $50,000 is payable to the spouse if the requisite calculations are less than $50,000.

 

  • The homestead and family allowance are in addition to the elective share. 59-6a202(c)

 

 

  • A homestead to the extent of 160 acres of land as defined by the act and occupied by the decedent and family as a residence at the time of the owner’s death together with all improvements on that land. A court cannot force the partition of the homestead until the surviving spouse remarries or until all the children reach the age of majority. 59-402 Once the homestead right expires; title to the homestead passes in accordance with your Kansas Will or intestate succession. 59-401

 

 

  • Family allowance- whether you died with or without a Kansas Last Will and Testament, if you have minor children then your spouse will be allowed certain property such as furniture and house hold goods and a reasonable of money or property up to $35,000 for the benefit of your spouse and minor children (up until they reach the age of majority). 59-403

 

 

  • If your spouse elects to take the share you left him/her under your Kansas Will (if any), then this does not reduce the homestead or family allowance (unless your Kansas Last Will & Testament specifically states that the provision in your Will was to be in lieu of such rights). 59-404

 

Excluding Your Children

Disinheriting a child from your Will can be achieved with proper advice from a qualified attorney. A lawyer can provide the appropriate clause for your Kansas Will and advise you of any other course of action you should take. Other than the homestead and family allowance benefiting your minor children, the Kansas probate code provides no other entitlements for your children.

Kansas Intestacy Rules – Dying without a Will

If you die without making a Kansas Last Will and Testament, then your property is distributed in accordance with Kansas intestate succession law. Firstly, your assets are used to pay any homestead rights and allowances, your reasonable funeral expenses, costs of your last sickness and administration, taxes and your debts. 59-502 Then, a specified portion goes to your spouse and the balance to your other heirs.

What does my spouse receive?

  • if don’t leave any children or grandchildren from a deceased child of yours – the entire intestate estate;

 

  • if you leave children or grandchildren of a previously deceased child of yours – ½ of your intestate estate. 59-504. The other ½ is divided equally between your children. If a child has predeceased, then your grandchildren will take their parent’s share equally. 59-506

 

What if there is no surviving spouse?

  • If you don’t have a spouse or he/she predeceases you, then your entire estate is distributed to your heirs in the following order:

 

  • firstly to your children equally (or grandchildren by representation); 59-506

 

 

  • secondly to your parents (or the survivor of them). This includes adoptive parents 59-507.

 

 

  • Thirdly to the heirs of your parents respectively (excluding their spouses). If one parent did not leave any heirs, then that share will go to your other parent’s heirs. 59-508

 

 

  • If there are no heirs of your parents up to the sixth degree of kinship, then your property goes to the heirs of your last spouse who died prior to your death (failing which, the property escheats to the state of Kansas). 59-514

 

How does Kansas Intestacy Legislation Work?

To make the legislation easier to understand, here are some case studies of what happens when a Kansas resident dies without a valid Kansas Will(not taking into account any advancements made by the intestate to any person): Wife passed away without a Will – intestate share of husband and child: Maria passed away without a Will. She had a child to her husband Mark. Her estate is worth $300,000. Who gets what? Mark: $150,000, Mark & Maria’s Child: $150,000. Husband died, no Last Will & Testament, left wife, children and child from former partners: Scott died leaving an estate of $300,000. He had no will. He had two children to his wife Anna. Scott also has a child from a former partner. Who gets what? Anna: $150,000, Anna & Scott’s 2 children: $50,000 each, Scott’s child from former partner: $50,000. Intestate distribution when wife dies without a will leaving husband, children and stepchild: Helen died leaving $300,000. She had no will. She has two children to her husband Larry. Larry also has a child from a former partner. Who gets what? Larry: $150,000, Larry & Helen’s 2 children: $75,000 each, Larry’s child from former partner: Nil. Widow father & grandfather died with no Will, share of surviving child and grandchildren: Charlie died without a will. His estate is worth $300,000. He had 3 children with his wife (predeceased). Two of their children have already died, leaving a granddaughter from one child and two grandsons from the other deceased child. Who gets what? Surviving child: $100,000 (1/3), Granddaughter (single child): $100,000 (1/3), Grandsons (brothers): $50,000 each (share 1/3).

Kansas Will Forms

Note: Before making a Kansas Last Will and Testament, we recommend you read advice on making a Will. A comprehensive guide provides vital information on preparing, signing and witnessing a Will. It also gives tips on:

  • Distributing your property including specific bequests and the residue
  • Appointing an Executor
  • Creating a Trust
  • Appointing a Trustee to look after trust property of minor children or other beneficiaries
  • Designating a guardian for your minor children

Sample Will forms available as free downloads (printable PDF documents):

Kansas Will Form: Married with adult children
Kansas Will Form: Married with adult and/or minor children, includes a trust for minor children
Kansas Will Form: Married with no children

Kansas Will Form: Single with adult children
Kansas Will Form: Single with adult and/or minor children, includes a trust for minor children
Kansas Will Form: Single with no children

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