What Happens If You Die Without a Will in Kansas?

Updated

When a loved one dies without a will, those left behind face the challenge of identifying heirs and distributing the estate.

Jump ahead to these sections:

Rather than a process to be avoided, probate is the method for obtaining the authority to wrap up an estate. That includes paying any debts and distributing the remaining assets to heirs. 

Estates without a will follow a process nearly identical to those with a will. The primary difference comes from who inherits, and that’s determined by the state’s intestacy laws when the decedent didn’t leave a will. 

Kansas’s Intestacy Laws Explained

The intestacy laws provide a framework for determining who inherits a decedent’s assets when they die without a will. They exist to fill in the gaps that would typically be answered by a will. 

Most wills nominate an executor for the estate, express the decedent’s desire for property distribution, and nominate a guardian for minor children. While each corresponding area of law has a method for determining what to do absent a will, it’s always a good idea to make a will to avoid uncertainty and to ensure your wishes are carried out. 

Under Kansas intestacy laws, heirs are determined based on the decedent’s family structure. The surviving spouse and any descendants, like children or grandchildren, are the most likely people to inherit. Parents, siblings, and more distant family members can inherit when the decedent lacks more closely related family members.

Non-probate transfers and determining the probate estate

The probate process and intestacy laws only apply to a decedent’s probate estate, which may not be everything they owned at the time of their death. 

Non-probate transfers remove property from the probate estate by designating beneficiaries. Those designations override intestacy laws and even wills. 

These transfers make up the simplest type of estate planning. It’s often as simple as filling out a few fields when opening an account. Life insurance policies, retirement accounts, and bank accounts all commonly allow for the designation of a payable-on-death beneficiary.

Beneficiaries of accounts with the payable-on-death designations should be able to collect the account with proof of the decedent’s death and their own identity.

Non-probate transfers take on a few other forms beyond the payable-on-death designation. Property in a trust also transfers outside of probate. A trust can hold all types of assets, and people often choose trusts as their primary estate planning tool. Not only do they remove property from the probate estate, but it also gives the property owner and their heirs more privacy by keeping the process outside of the court system.

Finally, real property held as joint tenants with right of survivorship will transfer without any assistance from the probate process. The surviving co-owner becomes the full owner of the property upon the other owner’s death.

How Does Probate Work in Kansas If There Is No Will?

Probate fills the same function regardless of whether the decedent left a will. It’s the process for appointing a personal representative for an estate and providing the needed oversight for the administration of the estate. 

The court rarely provides the intense, micromanaging supervision that most people associate with probate. Instead, it grants the personal representative the authority to act on behalf of the estate. The court issues letters of administration, which grant the personal representative the legal authority to deal with the estate assets. 

Of course, with that power comes responsibility. When the court appoints a personal representative, they become charged with specific duties to the heirs and the court. As a result, many families try to avoid full probate to save time and make dealing with their loved one’s property easier and less burdensome.

Small estate affidavit

If an estate qualifies, the small estate affidavit can be the simplest way to transfer the decedent’s assets.

Ultimately, the purpose and final outcome of a probate case is the transfer of all of the decedent’s assets to the new owners. For estates with assets valued at less than $40,000, you may be able to accomplish those transfers with the state-sanctioned affidavit. 

The affidavit allows you to identify the collected property and the heirs entitled to inherit it. Rather than submitting the affidavit to the court, you simply sign it before a notary and then submit it to the person or entity holding the asset, like a bank or landlord.

The small estate affidavit only works to transfer personal property like bank accounts or cars. If the estate you are working with contains real estate, you will need to consider one of the other probate alternatives.

Simplified probate procedure

For estates that cannot be resolved using the small estate affidavit, an intermediate option exists that does involve the court. Instead, it's not as in-depth as traditional probate.

The individual applying to be the estate's personal representative can request that the estate continues under the Kansas Simplified Estates Act. The personal representative still gathers and distributes assets, pays creditors and taxes, and files an estate inventory. The court does not supervise the administration, but it must approve the sale or lease of any real estate. Finally, the personal representative files a closing statement detailing who inherited which asset.

Full probate

For estates that proceed under the full probate procedure in Kansas courts, the court still appoints a personal representative to administer the estate. The main difference is the personal representative can expect greater oversight from the court, lengthening the time it takes to close the estate. 

The appointment of the personal representative can take a few weeks from the filing of the petition. The court provides approval for paying debts greater than $1,500, lawyer and executor fees, and the final distribution of assets. 

In Kansas, creditors have four months from actual notice to file claims against the estate. As a result, probate usually takes at least six months from the time of filing before the personal representative can close the estate.

Who Typically Inherits Assets in Kansas If There Isn’t a Will?

When someone dies without a will, intestacy laws determine who inherits. Those who create wills can leave friends and charities small portions of the estate. Unfortunately, the laws of intestacy lead to an all-or-nothing result. 

In Kansas, if someone was unmarried upon their death, their children inherit their entire estate. And vice versa, if someone was married but did not have children, then their spouse inherits everything. 

When someone dies with both a spouse and descendants—children or grandchildren—the spouse inherits half of the decedent’s estate, and the descendants inherit the other half.

Frequently Asked Questions: Dying Without a Will in Kansas

The laws of intestacy are broad and intended for application to any family structure, but that doesn’t mean it’s always easy to determine who should inherit. An experienced probate attorney can give you a customized opinion of how the intestacy laws impact your family. 

What happens when your parent dies without a will?

When your parent dies without a will, the portion you inherit depends on whether your parent was married at their death and the number of siblings you have.

If your parent wasn’t married, you and your siblings would inherit their entire estate. Keep in mind that the estate will be divided equally among siblings. If one of your siblings has already died, their children can inherit their share. 

Alternatively, if your parent was married at the time of their death, their spouse gets half of the intestate estate. You and your siblings will share the other half. 

When determining who inherits, the intestacy laws consider biological and legally adopted children. Step-children and foster children do not inherit through the laws of intestacy.

What are a surviving spouse’s rights if there’s no will?

If the decedent had no children, a surviving spouse inherits the entire intestate estate. If the decedent did have descendants, the spouse only inherits half of the intestate estate. The other half goes to the descendants.

Married people usually own real property as joint tenants with rights of survivorship. This means that when one spouse dies, the other becomes the full owner of the property. Given that a house is usually a family’s most valuable asset, this generally works in the spouse’s favor. Keep in mind that a spouse often ends up with much more property through non-probate transfers.

How do you become an executor of an estate without a will in Kansas?

To become the executor of an estate—also called the personal representative—you can petition the court for an appointment by opening a probate case. 

Kansas probate law establishes a priority for the appointment of the personal representative when there’s no will. When more than one person petitions to be the personal representative, the one with the highest priority is the most likely to be appointed by the court, provided they are a competent candidate. 

Who is considered next of kin in Kansas?

Next of kin depends on who the decedent leaves behind at the time of their death. It may be the surviving spouse, children, grandchildren, parents, or even siblings.

Does the personal representative get paid?

The personal representative is entitled to compensation for their time spent on behalf of the estate. Unfortunately, Kansas law does not establish a fee schedule or other payment structure. Instead, the court must approve the requested fees to reflect the services rendered to the estate.

How long does probate without a will take in Kansas?

Estates must remain open for at least six months after the decedent’s date of death. Beyond that requirement, the time it takes to administer an estate varies. Some estates have limited assets that are easy to transfer and few bills or extra work for the personal representative. In others, it can take the personal representative months of searching just to find heirs to make distributions. 

The easiest estates to administer are those with few heirs or easily divisible property so they can be signed over to the heirs. In other estates, the personal representative must first sell assets, like a house, to be able to divide the estate among heirs equally.

Does Kansas assess inheritance taxes?

Kansas does not levy an estate or inheritance tax upon a decedent’s estates or heirs. The federal estate tax still applies.

Estate Plan to Avoid the Laws of Intestacy

Even though your assets pass to family members without a will, estate planning can avoid the unintended consequences of the laws of intricacy. People inexperienced with probate in Kansas are unlikely to realize a spouse will only be entitled to one-half of the estate when the decedent also has children. That division may not accurately reflect a lifetime of teamwork and joint earnings. 


Sources:
  1. "Simplified Estates Act." Article32, Kansas Legislative Sessions, 2019. Kslegislature.org.
  2. "Kansas Statutes" Chapter 59 Probate Code, Kansas Office of Revisor of Statutes, 2017. Ksrevisor.org.

Icons sourced from FlatIcon.