Asked in Estate Planning and Family Law for Kansas

Q: Why would a sibling file a determination of descent petition as a plaintiff in a family farm vs. her brothers?

I want to find out if she is sealing her inheritance or questioning the sale of the farm.

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1 Lawyer Answer

Scott C. Stockwell

Answered
  • Estate Planning Lawyer
  • Lawrence, KS
  • Licensed in Kansas

A: A determination of descent is a proceeding in probate court to determine the heirs of law of a person who has passed away and to enter an order transferring the assets of the estate to those heirs at law in accordance with the laws of intestacy. If there had been a will, it should have been filed with the probate court within six months from the date of death. If the will was valid, its terms would have controlled who received the assets (subject to spousal rights, if any). If no probate estate was opened during the first six months after the date of death, any heir at law has the right to file for a determination of descent.

Given the complexity of a "family farm" arrangement, it might be appropriate for an estate to be opened so the estate's assets may be managed before they are distributed. You should consult with an attorney to evaluate whether an estate needs to be opened. The assets may not easily be divided among several siblings. An administrator could, with the court's approval, sell the assets or propose a division of assets in an equal manner. For example, one tractor, or three different tractors, cannot easily be divided between three heirs at law. A distribution plan needs to take into account the fair market value of the assets to be distributed. It may also be appropriate to sell some assets rather than distribute them.

The sister has consulted with an attorney and is taking action to protect her interests in the assets. The filing of a determination of descent is an appropriate first step. The brothers and any other heir at law should immediately consult with an attorney to determine what steps they should take to protect their interests in the assets.

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