Kansas Probate, Estate and Trust Administration
Serving Individuals, Families and Farmers throughout Northwest and Southwest Kansas
How does probate work?
There can be terrific grief and pain at the loss of a loved one. Beyond grief and pain, when you add external stresses to the equation you can have a disaster on your hands in very short order.
Part of the responsibilities or duties of an executor or administrator of an estate can be to reduce the level of stress during the probate process.
The fundamental duties of a personal representative (also known as an “executor,” if male, or an “executrix,” if female) of an estate are the same as those of a trustee—protecting the assets and interests of the beneficiaries. One way to protect those assets
and interests—and at the same time help the probate process go smoothly—is to have all of your ducks in a row and prepare for court as best you can.
Read on for some essential reminders about probate and
how representatives can assist with the process.
What should I know about the probate process?
A personal representative is required to prepare and file an inventory and a list of claims after the representative is approved by the court. The timeframe for this important chore is set by statute. This inventory should detail all of the assets subject to probate (i.e., that did not pass outside of probate by operation of law or otherwise). The property must be valued and even appraised as necessary. The claims include debts due and owing to the estate (not debts the estate owes to another party). The inventory will be important long past when probate proceedings are over as it can verify the income tax basis of an asset which is necessary to calculate capital gains tax when a beneficiary sells an inherited asset.
One thing to realize if you are a beneficiary is that the will may be “read” a few days after the funeral, but the gifts and bequests are not given out at that time. Yes, you may be entitled to the assets, but the inheritance is subject to the estate’s administration. The representative must settle the decedent’s debts and claims before he or she can make any distribution of the assets. So, beneficiaries, do not go to Grandma’s house with a moving truck and start taking whatever you want. Most likely, the representative is doing his or her job and making sure everything stays where it is until probate is closed.
As noted above, the representative also must keep the administration process moving along by settling all of the decedent’s debts. He or she must give proper notices to creditors, to include making publication in the appropriate newspaper and sending written notice to known secured creditors by certified mail. Also, some representatives are under the mistaken impression that all debts must be paid. He or she begins paying the decedent’s bills immediately, which is not necessarily good. Kansas probate proceedings establish a priority order for claims to be paid and if claims are paid out of order, the estate may run into problems.
The representative must keep the beneficiaries
in the loop, to include providing each with notice by mail that the will has been admitted to probate and a copy of the will itself. In addition, the representative must inform the beneficiaries of any information that might affect their rights.
The representative is responsible for the care and maintenance of estate property, treating it with even greater care than his or her own property. The representative is only permitted to sell estate property if allowed by the Will, or there are not enough assets in the estate to cover creditor claims.
What about a Revocable Living Trust?
A properly funded and maintained revocable living trust is a great vehicle to avoid probate entirely. The trustee is still responsible for administering the trust estate according to the desires of the trustmaker but can do so privately, and without Court supervision and oversight. The trustee is still required to manage the assets, obtain an inventory and valuation of the trust estate, and provide an accounting to the heirs or beneficiaries.
As you can see, being a representative or trustee is a big, big job. Along the way, there are taxes to be paid and returns to be filed, along with a many other details. Consequently, he or she can be removed if proven guilty of any gross misconduct or
mismanagement in the role of representative or trustee. The representative or trustee may be subject to a suit for breach of fiduciary duty.
It’s okay to ask for help
So you see, there is more than a little pressure on the personal representatives and trustees. As a result, it is essential that the representative or trustee work in concert with one of Graber & Johnson Law Group’s experienced estate planning attorneys to guide the representative or trustee during this process … and avoid all of the hidden landmines.