Estate planning is not just for the wealthy. Estate planning is the process of getting your affairs in order so that in the event of your disability that someone you trust has the legal authority to act on your behalf and in the event of your death that your assets go to whom you want them to go with the least amount of fuss. Generally speaking: everyone over age 18 needs to consider having a health care power of attorney and health care directive; everyone with any type of assets such as a bank account, a 401k, an automobile may want to have a durable general power of attorney so these assets can be accessed for your benefit in case of disability; everyone with young children should have will in order to name guardians. And, of course, anyone with significant assets who cares who gets those assets in the event of their death will want to make a plan.
We would be happy to meet with you to discuss what steps you need to take. Unless there is an urgent matter, usually you can take a few weeks to get the funeral over with and to catch your breath. However, since many matters must be handled within 6 to 9 months we recommend you do not take too long to make an appointment. We will go over how to handle different kinds of assets the deceased owned, what to do about real estate, how to handle creditors, whether you need to go to probate and if so what kind of probate procedure would be best, and we will review what kind of tax issues to expect.
Probate is the process of using the courts to get assets which are the name of estate”. Assets which have a living joint owner (such as a joint bank account), a living beneficiary designated on a beneficiary designation or which are in a trust do not go through the probate process. Probate is usually held in the district court in the county in which the deceased was a resident at the time of death. In addition to handling estates of deceased persons probate courts handle guardianships and conservatorships for children under 18 or adults who have been found incompetent. Depending on the County, the probate court may also handle adoptions, care and treatment cases and other matters. There are several different types of proceedings in probate and consultation with a lawyer to determine what is the best procedure in your case is advisable. While many people want to “avoid probate”, there are circumstances in which using the probate procedure is the most efficient way to handle the transfer of assets after death.
Every state has their own procedures. In Kansas, you can have a probate in a testate estate (with a will), a probate in an intestate estate (without a will), a refusal of letters, a determination of descent, an informal administration or a simplified estate administration. In Kansas, most of these procedures need to be started within 6 months of death.
No. A will gives instructions to the probate court as to who you want to receive your assets after your death and who you want to be in charge of winding up your affairs. If you have assets which remain in your name after your death (in other words, assets that do not have a joint owner, a designated beneficiary or are held in trust), the assistance of the probate court is usually needed. Even if there are no assets needing to be probated it is a good idea to file the will “to record” within 6 months of probate.
A transfer on death deed, also called a beneficiary deed, is a deed recorded in the land records in your county specifying that if you still own that particular property at the time of your death the property will belong to the persons named in the deed. While you can get a form at an office supply store having a lawyer prepare the form will help make sure the form is correctly prepared, and help you consider issues which may arise.
A power of attorney ends at the death of the person giving the power of attorney with the limited exception of some health care powers of attorney with respect to autopsy, organ donation and disposition of the body. A “Durable” power of attorney means that the power of attorney does not end if the giver becomes incompetent. Even a durable power of attorney ends at death.
Usually not. If a person dies without a will, the laws of intestacy (Latin for “without a last will and testament”) determine who gets the assets of a deceased person. These laws vary by state and sometimes by whether the asset is real estate or not real estate. In Kansas for example, a person with a spouse and children would have one-half of the assets pass to the spouse and one-half divided between the children.
Usually family members are not responsible for the deceased person’s debts. Exceptions would be where you co-signed or guaranteed the account, you made the charges, or if the debt is secured by an asset which you have possession of. Spouses can also be responsible for certain debts. We will be happy to discuss your responsibilities.
“Death taxes” is an invented phrase used to refer to inheritance taxes or estate taxes. Most people do not need to be concerned about either. Kansas has abolished both inheritance and estate tax. The federal government imposes an estate tax put only on estates more than $5.45 million. (Technically, $5 million, indexed for inflation. The amount changes every year). Married couples can combine the amount they leave, although certain deadlines need to be met. If the amount of assets which would pass to other persons on your death is near or over $5 million you should talk to an estate planning attorney. A tax that DOES affect many people and sometimes comes as a surprise is the income tax which needs to be paid when money is removed from an IRA, 401k, other retirement plan or annuity. We can talk to you about what to expect and strategies to manage the tax issues.
It depends. If you have minor children or the possibility of young people inheriting your lawyer will probably put a testamentary trust in your will. A testamentary trust appoints someone you trust to manage property passing through the probate court for the benefit of the beneficiary, usually until the beneficiary reaches a certain age. Another common type of trust is the “revocable” or “living trust” – sometimes called a “RLT” for revocable living trust. In this type of trust you transfer your assets to you or you and your spouse as trustees during your lifetime with instructions to manage the assets for your benefit. The trust agreement will commonly have instructions for what to do if you become incompetent and instructions for how to distribute your assets after your death. Because the assets are owned by the trust and not by you personally there are no “assets owned by a dead person” after your death and consequently, no probate procedure is required. Before the size of estates subject to estate taxation was increased to $5 million, trusts were commonly prescribed especially for married couples to help reduce estate taxes. However, there are still some circumstances where a trust or trusts would be very helpful in meeting your goals. Among the possible circumstances where a trust would be helpful:
Usually it is better to let children have access to the bank account by use of a power of attorney than adding them as co-owners. If the children become involved in a legal matter such as a divorce or bankruptcy and they are a co-owner on your accounts, it could be difficult to keep your assets out of their legal trouble. However, every situation is different so this is something you should discuss with your estate planning attorney.
The primary reason would be because you are not entitled to act on each other’s behalf with respect to health care decisions and other matters simply because you are married. At a minimum you need to consider getting a health care directive and a durable general power of attorney.
This is because the life insurance policy probably only named the oldest sister as a beneficiary. Beneficiary designations take priority over the disposition in a will.
If you did not sign a prenuptial agreement or a waiver you may be able to claim certain assets (such as 401k plans) or part of the assets. It is important to act quickly before assets are distributed. You may be entitled to homestead rights, a homestead allowance or a share of your spouse’s estate. We would be happy to talk to you about what remedies may be available to you.
Sometimes no. There is no obligation under Kansas law to leave assets to your children. However, if you feel that fraud was involved or that your father changed in estate plan in response to inappropriate pressure or influence there may be cause to set aside the change in estate plan. If so, it is important to take action as soon as possible.
The bank is referring to “Letters Testamentary” or “Letters of Administration”. These are the official orders of the probate court designating someone to be in charge of the probate estate of a person who died with a will (Letters Testamentary) or without a will (Letters of Administration). You need to consult with an attorney. Note that a full probate proceeding is not always needed. See the FAQ “what kinds of probate are there?”
In Kansas, the legislature allows certain property to be transferred by affidavit without going to probate court if the total probate estate is less than $40,000. The Kansas Judicial Council publishes probate forms. You may be able to get a copy of the form from your local law library. Or, you can contact our office to help you with preparing the affidavit. The bank or other entity does not have to accept the affidavit. If that is the case help from the probate court will be required, usually in the form of a “Refusal to Issues Letters” procedure.
Some people use this phrase to refer to a proceeding in the probate court to appoint a guardian (person in charge of the body) or conservator (person in charge of the assets) for an adult determined to be incompetent. The possibility of having to have a living probate can be reduced by a properly prepared durable general power of attorney and a health care power of attorney or by having a trust.
We have a special interest in charitable giving. We can talk to you about what types of assets are best used for lifetime and after death gifts, gifts in trust or with conditions and negotiating with a charity about the use of your gift. We can also talk to you about using your required minimum distribution from your IRA for a charitable gift.
There are many companies who have online estate planning forms available for a modest cost. Our experience is that while the forms are technically fine many people do not understand which form they should use or fill them out improperly. If you have a fairly simple situation you may qualify to participate in one of our workshops where we will assist you in a small group in making and executing simple documents. See the tab on our Wills Workshop. If you situation is not that simple, we would still be happy to discuss your situation and suggest alternatives to meet your goals. We also accept installment payments with use of a credit card.
I don’t have an “estate,” why do I need estate planning?
My family member has died. What do I do now?
What is probate?
What kinds of probate are there?
I have a will, that means my estate won’t go to probate, right?
What is a transfer on death deed?
I have my deceased Dad’s power of attorney, why won’t the bank let me write checks on his account?
I heard that if I don’t have a Will, the government gets everything.
Mom’s credit card company keeps calling me. Do I have to pay?
I’m worried about death taxes.
Do I need a trust?
Why shouldn’t I add my children to my bank accounts?
My husband and I own everything jointly. Why do we need an estate plan?
The will says everything is divided equally between the children. Why did the life insurance policy go only to my oldest sister?
My deceased spouse left everything to his children. Is there anything I can do?
Our father died and left everything to his spouse, is there anything we can do?
The bank says I need some kind of letter from the court before I can have Mom’s CD what does that mean?
The bank says I need a small estates affidavit. What is that?
What is “living probate”?
I am interested in making a gift to my charity. What is the best way to do this?
I can’t afford a lawyer. Are there any alternatives?