A last will and testament is an important component in planning the distribution of your estate (real and personal property and cash assets) upon your death. Kansas wills give the testator, the person writing the will, the opportunity to provide for a spouse, children, relatives, friends, and other loved ones after his death. Pet care may also be included in a last will and testament.
Not to be confused with a will, a living will provides instructions should you become incapacitated and incapable of making decisions regarding your health and medical care; accordingly a Kansas living will, if necessary, takes effect during one’s lifetime while a last will takes effect only after one’s death.
Do You Need a Last Will and Testament?
Although a last will and testament is not legally required, without a will, state laws (called laws of intestacy) will determine the distribution of the deceased’s assets. The outcome may not coincide with the decedent's (the person who passed away) wishes, however, which means it is generally advisable to create a last will and testament.
There are many benefits to having a Kansas last will and testament, but one of the most important is that it allows the testator to choose the executor of the estate, that is, the person who will be responsible for carrying out the wishes contained in the will.
A will can offer a testator great peace of mind in knowing that his desires as to how assets should be divided between loved ones upon his death will be followed. A Kansas last will and testament also offers the opportunity to make a charitable gift and create a trust for a spouse and children.
Another benefit of a Kansas will is that it can allow you to nominate the person to act as legal guardian of your children and also to outline the guardian's duties.
In addition to testamentary trusts (i.e., trusts created through a last will and testament) that provide a benefit for people, Kansas law allows the creation of “pet trusts” in order to provide for the care of animals after the settlor's death. The trust terminates when no living animal is covered by its terms. A Kansas will gives you the opportunity to ensure the well-being of your pets after your death in this manner.
Before the terms of a will can be accepted, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person. Once the will is proven valid in probate court, the executor can then pay off any debts and taxes owed by the estate and then distribute the testator’s property according to the will.
In Kansas, a will must be filed within six months of the decedent’s death. An estate may be eligible for a simplified probate process; factors the court considers in such a decision may include the following:
- Size of the estate
- Degree of kinship of the heirs
- Devisees and persons seeking appointment
- Solvency of the estate
- Nature of the estate
- Wishes of the heirs and devisees
- Probable cost of estate administration and settlement
- Any other pertinent matters
After the court grants letters testamentary, the executor collects and manages the estate’s assets and pays expenses of the estate, including taxes. The executor of the will may then distribute the decedent’s property as provided for in the will.
Intestacy: Dying Without a Will
Someone who dies without a will is called “intestate,” which invokes the strict laws of intestacy. In Kansas, in the absence of a will, if you have a surviving spouse as well as a descendant, each receive half of your estate; if you have only a surviving spouse or a descendant, he or she would receive the entire estate. If you have neither a surviving spouse nor a descendant, other relatives, including parents, siblings, and grandparents, will inherit depending on the closeness of the relation.
As you can see, if you would like to have control over the distribution of your assets, it is vital that you have a will.
Exceptions to Ability to Distribute Property
Not all property you own can be distributed according to a will. For example, any property owned as a joint tenant with right of survivorship cannot be devised by will in Kansas. The beneficiary of life insurance policies also cannot be changed by a will.
Another important exception involves the spousal elective share. In Kansas, a surviving spouse is entitled to a percentage of the augmented estate, which is established by statute and depends on the length of the marriage.
Form a Last Will in Kansas
The basic requirements for a Kansas last will and testament include the following:
- Age: The testator must have reached the age of majority in Kansas (currently 18 years old).
- Capacity: The testator must be of sound mind.
- Signature: The will must be signed by the testator or by someone else in the testator’s name in the testator’s presence, by the testator’s direction.
- Witnesses: A Kansas will must be signed by at least two individuals, who should not also be beneficiaries in the will. The witnesses must sign in the presence of the testator after seeing him sign the will or the acknowledging the will.
- Writing: A Kansas will may be written or oral, as more fully explained below.
- Beneficiaries: A testator may leave property to any beneficiary provided he or she is not a witness to the will.
Other Kinds of Recognized Wills
Kansas recognizes nuncupative, or oral, wills under certain circumstances. Oral wills must be made in the last sickness of the testator and are valid with respect to personal property (not real estate) if reduced to writing and subscribed by two witnesses who are not beneficiaries under the will within thirty days after the will is made orally.
Changing a Kansas Last Will and Testament
Any changes to a Kansas will are valid only if they are made according to the same procedures as a will. Moreover, changes must be made by the testator or by someone else in the testator’s presence and by his direction or consent.
Revoking a Kansas Last Will and Testament
The revocation of a Kansas will can be accomplished in the following ways:
(1) by a subsequent will;
(2) by some other writing of the testator declaring the revocation and created with the same formalities as a will; or
(3) by burning, canceling, tearing, obliterating, or obliterating the will, done by the testator or by some person in his presence and by his direction.
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