Probate

What is probate?

Technically, probate is the legal process of proving the validity of a will after a person’s death. However, practically speaking probate has been expanded to include the court proceedings required to distribute an individual’s assets after their death.

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Are there ways to avoid probate?

There are several ways to transfer property to heirs or beneficiaries after your death without a formal probate process. The most common way is by owning property as ‘Joint Tenants with Right Survivorship.’ Many married individuals own real estate and joint bank accounts in this fashion. Another method is Transfer on Death deeds and beneficiary designations. To learn more, please look at our Estate Planning section. It is important that you talk with a professional about the limitations of these tools though.

What are the different types of probate?

The exact process under probate that is used depends on the individual circumstances.

1. Formal Administration: If there is a will, the court issues Letters Testamentary to an executor/executrix. If there is no will, the court appoints an administrator and issues Papers of Administration.

2. Simplified Administration: Same process as in a Formal administration, but with less Court oversight.

3. Informal Administration: A detailed petition is filed identifying all assets, proposed distributions, plan to satisfy debts, and request for appointment of a representative to carry out the Court’s Orders. While Informal Administration is often the quickest and easiest method for handling an estate, it requires a lot of information be known from the outset. Many estates have too many unknowns to probate in this fashion. Often the full extent of the assets, debts, locations and status of beneficiaries is not immediately apparent.

4. Determination of Descent: This type of estate is most common when no will has been filed. The decedent must have been deceased for more than six months and no other proceedings started. The petition must identify the heirs at law and the decedent’s assets.

5. Refusal to Grant Letters

6. Small Estates Affidavit: An affidavit showing entitlement to the assets and discharging liability pursuant to K.S.A. 59-1507b. This document is filed with the Clerk of the District court and does not require that a pleading be filed with the Court. The estate must have a value of less than $40,000 and can not contain any real property.