People often hear about \u201cprobating an estate.\u201d\u00a0 What does that mean?\u00a0 Probate really has to do with wills, and it means \u201cproving\u201d in court that the will of a deceased person is valid.\u00a0 Sometimes the phrase \u201cprobating an estate\u201d is used, even if the deceased person did not have a will.\u00a0 In some jurisdictions, the court hearing the case is called a \u201cprobate court.\u201d\u00a0 When a person dies, the property owned by that person is property of the deceased person\u2019s estate.\u00a0 An estate is \u201copened\u201d under Kansas law when a petition to probate a will is filed with the district court in the county where the deceased person lived.\u00a0 The person\u2019s will is attached to the petition, along with a request to administer the estate and appoint an executor.\u00a0 The executor is the deceased person\u2019s personal representative, and is named in the will.\u00a0 If there is no will, but the person had property, then a petition is filed for the administration of the person\u2019s estate and the appointment of an administrator.\u00a0 An administrator generally has the same powers and authority of an executor, with the most important difference being that an administrator cannot sell real property without a court order, whereas an executor can if the will allows it.<\/p>\n
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In a will case, it is possible for there to be a will contest, if there are two different wills.\u00a0 Generally, the last one written by the deceased person is the valid will, since it would revoke any prior wills.\u00a0 It is possible that a later writing, known as a codicil, may exist.\u00a0 This is an amendment to a will, so both the will and the codicil would be admitted to probate.\u00a0 Admission to probate means that the court has found that the will is, indeed, the last will of the decedent.<\/p>\n
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The case then proceeds to administration of the estate, which means accounting for all property owned by the deceased person, and giving notice to any creditors.\u00a0 In Kansas, creditors have four months after notice to file any claim for payment.\u00a0 If a creditor is owed money, but that creditor does not file a claim in the estate (called a \u201cpetition for allowance of demand\u201d under Kansas law), then the claim is barred.\u00a0 If a claim is timely filed, then the creditor is paid with money from the sale of estate assets.\u00a0 Generally speaking, the next of kin of a deceased person are not liable for the decedent\u2019s bills \u2013 only the estate is.<\/p>\n
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After bills are paid, along with any estate or inheritance taxes, the remainder of the property then goes to the beneficiaries named in the will or the legal heirs of the decedent is there is no will.\u00a0 After that, the estate is closed and the executor or administrator is discharged.\u00a0 Prior to discharge, the executor or administrator must first account to the court concerning all property owned by the decedent, when and how it was sold, what claims were paid, and what is left for the persons who are inheriting the property.<\/p>\n
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Many years ago, a book was written called \u201cHow to Avoid Probate.\u201d\u00a0 There are, indeed, ways to avoid probate, but the title of the book suggested that probate was something that should be avoided at all cost.\u00a0 Popular misconceptions about probate include the assumption that either the lawyers or \u201cthe state\u201d will take all the money, or that the estate will be \u201ctied up in probate\u201d for many years. \u00a0In Kansas, the judge assigned to the case determines what fees are to be allowed the attorney representing the estate.\u00a0 The fee must be reasonable and it is usually based upon an hourly charge.\u00a0 Occasionally, an estate may take several years to complete, but the vast majority of estates in Kansas are completed over the span of several months.<\/p>\n
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