Probate of Will

Probate is not estate planning. In fact, in many cases probate may prove to be the lack of proper estate planning. However, the Kansas Probate Code provides for estates of residents and nonresidents by intestate succession (no will) and testate administration (wills), adoption, care and treatment of mentally ill persons or persons with alcohol or substance abuse problems, guardians and conservators and transfer on death provisions for real estate and motor vehicles. Usually when people discuss probate they are referring to the process of proving a will if one was left and identifying and distributing property of the estate. In many cases, paperwork needs to be filed with a court and also may need filed with the Internal Revenue Service (“IRS”).

After experiencing a probate process, many people decide they would prefer to limit the amount of their property that will be subject to probate. Planning for probate avoidance is one of the objectives of estate planning. Nodine Legal assists clients with estate planning.

All Wills Need Filed

Did you know that all wills need probated in the State of Kansas?

After the death of a testator the person having custody of the testator’s will shall deliver it to the court which has jurisdiction thereof. Every person who willfully neglects or refuses to deliver a will after being duly ordered to do so shall be guilty of contempt of court. Such person shall be further liable to any party aggrieved for the damages which may be sustained by such neglect or refusal.  K.S.A. 59-621.

This means that if an individual has a Last Will and Testament (also called a “Will”) then anyone having custody of that will must deliver it to the Court.  But what happens when you try and deliver it to the Court?  The Court is going to want some paperwork to be filed along with the Will.  The type of paperwork will depend on the expected assets of the estate.

Wrongful Withholding of Will

What happens when someone withholds a will in the State of Kansas?

Any person who has possession of the will of a testator dying a resident of this state, or has knowledge of such will and access to it for the purpose of probate, and knowingly withholds it from the district court having jurisdiction to probate it for more than six months after the death of the testator shall be liable for reasonable attorney fees, costs and all damages sustained by beneficiaries under the will who do not have possession of the will and are without knowledge of it and access to it.  K.S.A. 59-618.

This means that if someone knowingly withholds the will then they may be ordered to pay the attorney fees, costs and damages to any harmed by their actions.  Further, if an innocent beneficiary finds out someone is hiding the will, the will may be offered after its discovery if done soon enough.  If done in time, the will can still control the assets of the estate.