Kansas Estate Planning Questions & Answers
Q: I'm going to prepare a will and have a question concerning inheritance tax on my home.
Scott C. Stockwell's answer
You are planning on writing a will. A will is a document that--in Kansas at least--is given no legal effect until it is probated in a court after the person who wrote the will (the “testator”) has passed away. When you pass, and the will is filed with the court and determined to be valid, the terms of the will will control who receives the asset or the proceeds from the sale of the asset. Making a transfer to an adult child while the owner is still living causes the house to be transferred...
You are planning on writing a will. A will is a document that--in Kansas at least--is given no legal effect until it is probated in a court after the person who wrote the will (the “testator”) has passed away. When you pass, and the will is filed with the court and determined to be valid, the terms of the will will control who receives the asset or the proceeds from the sale of the asset. Making a transfer to an adult child while the owner is still living causes the house to be transferred...
Q: Me and my brother are in probate because our father died..I recently just signed a consent and waiver now what?
Scott C. Stockwell's answer
There are several different procedures under which the probate proceeding could have been filed. You indicate you recently signed a consent and waiver and that a final settlement was filed. Any person who has an interest in the estate should keep informed about the progress the probate proceeding. Essential information about an estate includes an asset inventory and valuation that is filed with the court. The inventory and valuation would identify what assets are held by the estate and the...
There are several different procedures under which the probate proceeding could have been filed. You indicate you recently signed a consent and waiver and that a final settlement was filed. Any person who has an interest in the estate should keep informed about the progress the probate proceeding. Essential information about an estate includes an asset inventory and valuation that is filed with the court. The inventory and valuation would identify what assets are held by the estate and the...
Q: If there is a lien on a house, can we keep adding joint tenants, generation after generation to pass on the home?
Scott C. Stockwell's answer
It is not unusual for a mortgage and/or a promissory note to have a provision that accelerates the debt obligation upon the transfer of an interest in the property to another person. To answer your question, you would want to know the specifics of the promissory note and mortgage in question. As a practical matter, mortgage companies do not frequently accelerate mortgages upon a transfer if the loan in being repaid on a timely basis, regardless of whether the mortgage or promissory note has...
It is not unusual for a mortgage and/or a promissory note to have a provision that accelerates the debt obligation upon the transfer of an interest in the property to another person. To answer your question, you would want to know the specifics of the promissory note and mortgage in question. As a practical matter, mortgage companies do not frequently accelerate mortgages upon a transfer if the loan in being repaid on a timely basis, regardless of whether the mortgage or promissory note has...
Q: My Mother in law passed away
Scott C. Stockwell's answer
If there is a will, it should be filed with the court within six months of the date of death. Notice will be provided to persons with a potential interest in the estate and a hearing date will be set. If no one opposes the probate of the will, it will be probated as a valid will and an executor (or administrator with the will attached) will be appointed. Creditors will have a period of four months from the filing of the petition to make claims against the estate. The spouse will have the right...
If there is a will, it should be filed with the court within six months of the date of death. Notice will be provided to persons with a potential interest in the estate and a hearing date will be set. If no one opposes the probate of the will, it will be probated as a valid will and an executor (or administrator with the will attached) will be appointed. Creditors will have a period of four months from the filing of the petition to make claims against the estate. The spouse will have the right...
Q: How do I find out if my brother and I are named beneficiaries in our grandmas estate if my uncle won’t produce a will?
Michael Hales' answer
I recommend retaining an attorney to communicate with your uncle if he continues to ignore your requests.
I recommend retaining an attorney to communicate with your uncle if he continues to ignore your requests.
Q: My wife and her sister recently inherited a property/house in Tallahassee, Florida from their father at his passing.
Scott C. Stockwell's answer
The law that would apply to the lease of a Florida property would be Florida law. You need to seek legal advice from an attorney licensed in Florida.
The law that would apply to the lease of a Florida property would be Florida law. You need to seek legal advice from an attorney licensed in Florida.
Q: Husband died 6 years ago, Will filed, no probate, everything was joint. Now, found a stock certificate, in his name only
Scott C. Stockwell's answer
There is a process that allows for use of an affidavit for the heirs at law or beneficiaries of a will to transfer the assets directly to them if the value of the estate is under a certain amount. K.S.A. 59-1507b provides that if the total assets of the decedent subject to probate do not exceed $40,000 in value, any personal property of whatever nature transferrable to the decedent's estate by any entity or person shall be transferred to the successor or successors of the decedent, if entitled...
There is a process that allows for use of an affidavit for the heirs at law or beneficiaries of a will to transfer the assets directly to them if the value of the estate is under a certain amount. K.S.A. 59-1507b provides that if the total assets of the decedent subject to probate do not exceed $40,000 in value, any personal property of whatever nature transferrable to the decedent's estate by any entity or person shall be transferred to the successor or successors of the decedent, if entitled...
Q: What happens with a trust when all the trustees are deceased?
Scott C. Stockwell's answer
Sometimes a trust document provides a process for the identification or appointment of successor trustees who are not called out in the trust document. Alternatively, a court proceeding may be initiated by someone having an interest in the estate to ask the court to make determinations in furtherance of the interests of the beneficiaries of the trust. You should promptly consult with an attorney to determine the best course of action to proceed.
Sometimes a trust document provides a process for the identification or appointment of successor trustees who are not called out in the trust document. Alternatively, a court proceeding may be initiated by someone having an interest in the estate to ask the court to make determinations in furtherance of the interests of the beneficiaries of the trust. You should promptly consult with an attorney to determine the best course of action to proceed.
Q: Does my brother have to surrender the house he has lived in for the last 8 years taking care of his mother in home
Scott C. Stockwell's answer
Your brother should consult with an attorney regarding the Medicaid eligibility issues that may relate to the situation. A home of a Medicaid recipient may be transferred to an adult child who has lived with the Medicaid applicant for the two years prior to going into the nursing home and the child has made it possible for the parent to live in the home longer than he or she would have been able to.
Your brother should consult with an attorney regarding the Medicaid eligibility issues that may relate to the situation. A home of a Medicaid recipient may be transferred to an adult child who has lived with the Medicaid applicant for the two years prior to going into the nursing home and the child has made it possible for the parent to live in the home longer than he or she would have been able to.
Q: Mother wants to sell a cell tower??
1 Answer
| Asked
in
Contracts, Real Estate Law and Estate Planning
for
Kansas
on
Answered on Mar 2, 2018
Answered on Mar 2, 2018
Scott C. Stockwell's answer
If a person owns a life estate in a piece of real property, that person would not have the power to sell the real estate outright without the person with the remainder interest participating as a seller in the sale. The tower may be a fixture that, once affixed to the property, becomes a part of the real estate. There may also be a contract or lease that was agreed to by the landowner that may affect whether the tower may be removed without the landowner's consent and by whom. An attorney...
If a person owns a life estate in a piece of real property, that person would not have the power to sell the real estate outright without the person with the remainder interest participating as a seller in the sale. The tower may be a fixture that, once affixed to the property, becomes a part of the real estate. There may also be a contract or lease that was agreed to by the landowner that may affect whether the tower may be removed without the landowner's consent and by whom. An attorney...
Q: I am executor of estate from years ago and had found some money the previous trustee did not find have not distributed
Scott C. Stockwell's answer
If there is a need to reopen the estate to empower an executor or administrator, that may be done. An attorney who would work with you in addressing this new development would want to be sure about the nature of the asset, what proceedings would be needed, and minimizing the cost of a new procedure to maximize the payout. You should consult with an attorney promptly.
If there is a need to reopen the estate to empower an executor or administrator, that may be done. An attorney who would work with you in addressing this new development would want to be sure about the nature of the asset, what proceedings would be needed, and minimizing the cost of a new procedure to maximize the payout. You should consult with an attorney promptly.
Q: My mother passed away recently. She did not have a will. She lived with her boyfriend of 20-plus years. I'm her only hei
Scott C. Stockwell's answer
A single person who passes away with one child would have a single heir, the child. Kansas does recognize common law marriage. So two single people may hold themselves out to be married and by virtue of their affirmative effort to be a married couple, may become married. Common law marriage has generally fallen into disfavor in a majority of other states. You should consult with an attorney about how to handle matters of the estate and questions about whether common law marriage would be an...
A single person who passes away with one child would have a single heir, the child. Kansas does recognize common law marriage. So two single people may hold themselves out to be married and by virtue of their affirmative effort to be a married couple, may become married. Common law marriage has generally fallen into disfavor in a majority of other states. You should consult with an attorney about how to handle matters of the estate and questions about whether common law marriage would be an...
Q: My friend informed me that he wants me to inherit his estate and wants me to draw up the documents to do so.
Scott C. Stockwell's answer
Your friend would need some independent legal advice. Kansas law provides that: "Any provision in a will, written or prepared for another person, that gives the writer or preparer or the writer's or preparer's parent, children, issue, sibling or spouse any devise or bequest is invalid unless...it affirmatively appears that the testator had read or knew the contents of the will and had independent legal advice with reference thereto. K.S.A. 59-605. A document you prepare or have someone else...
Your friend would need some independent legal advice. Kansas law provides that: "Any provision in a will, written or prepared for another person, that gives the writer or preparer or the writer's or preparer's parent, children, issue, sibling or spouse any devise or bequest is invalid unless...it affirmatively appears that the testator had read or knew the contents of the will and had independent legal advice with reference thereto. K.S.A. 59-605. A document you prepare or have someone else...
Q: My sister passed away with no will. Her condo is going back to the bank. She has no assets but the condo and her car.
Scott C. Stockwell's answer
A creditor such as a bank may file a petition to probate an estate. In absence of a family member who is an heir at law stepping forward to ask for the appointment of an administrator, the court would likely appoint a fiduciary suggested by the creditors as administrator. The administrator would then have the authority to deal with settlement of the debts, filing taxes and such things.
It would be a good idea to visit with an attorney and determine who your sister’s heir(s) at law...
A creditor such as a bank may file a petition to probate an estate. In absence of a family member who is an heir at law stepping forward to ask for the appointment of an administrator, the court would likely appoint a fiduciary suggested by the creditors as administrator. The administrator would then have the authority to deal with settlement of the debts, filing taxes and such things.
It would be a good idea to visit with an attorney and determine who your sister’s heir(s) at law...
Q: Can a house or car from an estate be used if it hasn't been settled with the beneficiaries yet
Scott C. Stockwell's answer
After a fiduciary (executor if there is a will or administrator if there is no will) has been appointed to handle the estate, the fiduciary will need to safeguard the assets while the estate is being administered. Some assets may be sold, and others may be held for eventual distribution. With a house, there might be practical reasons why having it occupied might be better than leaving it vacant. Reasons to have a house occupied might, for example, include security, keeping the grounds...
After a fiduciary (executor if there is a will or administrator if there is no will) has been appointed to handle the estate, the fiduciary will need to safeguard the assets while the estate is being administered. Some assets may be sold, and others may be held for eventual distribution. With a house, there might be practical reasons why having it occupied might be better than leaving it vacant. Reasons to have a house occupied might, for example, include security, keeping the grounds...
Q: If property is deeded in my husband's name, will that ownership pass to me upon his death?
Scott C. Stockwell's answer
There are two parts to the question. The first being the nature of the interest that was transferred to your husband. If your husband holds his interest as a tenant in common, then his interest in the property would pass subject to his will if one exists, or the laws of intestacy, subject to your rights as a spouse. If your husband is a joint tenant with right of survivorship, then his interest in the property would lapse at his death, and the surviving of the siblings would be the sole owners...
There are two parts to the question. The first being the nature of the interest that was transferred to your husband. If your husband holds his interest as a tenant in common, then his interest in the property would pass subject to his will if one exists, or the laws of intestacy, subject to your rights as a spouse. If your husband is a joint tenant with right of survivorship, then his interest in the property would lapse at his death, and the surviving of the siblings would be the sole owners...
Q: My 4 children's father recently passed away. His current wife says their is no will but he showed it to me beforehand.
Scott C. Stockwell's answer
If you or your children know who the attorney was that drafted the will, you could reach out to that attorney and ask for the original or a copy. If the original is not found, one of your children could ask the court to probate the lost will, if its contents are known. There is a presumption that a lost will was revoked or destroyed by the decedent intentionally, but that presumption may be overcome by affirmative evidence to the contrary.
In Kansas, the heirs at law are the children...
If you or your children know who the attorney was that drafted the will, you could reach out to that attorney and ask for the original or a copy. If the original is not found, one of your children could ask the court to probate the lost will, if its contents are known. There is a presumption that a lost will was revoked or destroyed by the decedent intentionally, but that presumption may be overcome by affirmative evidence to the contrary.
In Kansas, the heirs at law are the children...
Q: If my parents deed a house to me, I cash out refinance to pay them, do we pay gift taxes or they pay Cap. Gains Tax?
1 Answer
| Asked
in
Tax Law, Estate Planning and Real Estate Law
for
Kansas
on
Answered on Sep 1, 2017
Answered on Sep 1, 2017
Scott C. Stockwell's answer
If your parents transfer the house to you, you take out a loan and pay to them a part of the fair market value of the property, the difference between the fair market value and your payment is a "gift." Your parents' gift does not create a taxable event for you. Your parents may have to file an informational gift tax return, depending upon the amount of the gift. If the amount of the gift a parent makes to a child is less than the annual exclusion ($14,000 for 2017), no informational gift tax...
If your parents transfer the house to you, you take out a loan and pay to them a part of the fair market value of the property, the difference between the fair market value and your payment is a "gift." Your parents' gift does not create a taxable event for you. Your parents may have to file an informational gift tax return, depending upon the amount of the gift. If the amount of the gift a parent makes to a child is less than the annual exclusion ($14,000 for 2017), no informational gift tax...
Q: I need help on how to get my mother'ss property.
Scott C. Stockwell's answer
You describe a situation in which you believe "fraud" may have occurred and that possibly a person who acted in a fiduciary capacity may have taken advantage of your mother who was in a diminished capacity. As an heir at law of your mother, you have an interest in her estate and may file a petition to probate her estate. If no will exists, your mother's estate would pass under the laws of intestacy and would pass to you and any siblings you may have, or to the heirs at law of any predeceased...
You describe a situation in which you believe "fraud" may have occurred and that possibly a person who acted in a fiduciary capacity may have taken advantage of your mother who was in a diminished capacity. As an heir at law of your mother, you have an interest in her estate and may file a petition to probate her estate. If no will exists, your mother's estate would pass under the laws of intestacy and would pass to you and any siblings you may have, or to the heirs at law of any predeceased...
Q: Why would a sibling file a determination of descent petition as a plaintiff in a family farm vs. her brothers?
Scott C. Stockwell's answer
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...
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...
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