When a family member dies (Part 2)

By Alexandra R. English

As a general rule, if a will exists, it must be probated. A will names an executor, who is responsible for administering the decedent's assets and affairs. If the decedent left a trust, the trust names a trustee who is responsible for administering any of the decedent's property owned outside of probate.

If you find either a will or a trust but are not the named executor or trustee, you should immediately contact the named individual(s). The person in possession of the will, even if he or she is not the executor, must present the will to the probate court within six months of the death.

Again, I strongly recommend that you find an attorney to assist you with this process. Kansas law provides that anyone who has possession of the will of a person who dies while legally a resident of Kansas, and who knowingly withholds the will from the probate court, will be liable for attorney's fees, costs, and damages to beneficiaries named in the will.

Let me also use this opportunity to tell you a cautionary tale. A client once came to me because he needed to title his house in his name. The house was originally in his wife's name, and she had died more than 20 years previously. She had written a will stating that her husband was to inherit the house, but the family never probated the will. The taxes came in her name every year and the family paid them. When it came time for them to sell the property, they could not figure out how to sell the house because the spouse did not have title to it.

I had to assist this man in finding a private attorney to open an estate for the deceased wife. As you can imagine, this was a huge expense and an incredible burden for someone trying to sell property. So, if a will exists, see a private attorney and learn whether the will needs to be probated.

If the decedent did not leave a will or a trust, determine whether the decedent transferred his or her assets through alternatives. Was there a Transfer on Death Deed, which would transfer the property upon the decedent's death to one or more named beneficiaries? If so, a death certificate must be provided to the Recorder of Deeds office in the county in which the property is located.

Were you or other family members joint owners of bank accounts, or did the decedent list you as a beneficiary, payable on death? Either way, the money should easily be transferred to the named beneficiaries upon the showing of a death certificate.

How is the car titled? Are you or other relatives listed as joint owners or beneficiaries, transfer on death? If so, the Department of Motor Vehicles can assist you with the transfer of title. If none of the above documents were drawn up and you cannot find a will or a trust, then unfortunately the decedent died "intestate." This means that a probate case must be opened and the Kansas statutes will determine which relatives inherit which property. If this is the case, please contact a private attorney to guide you through the probate process.

It is possible that the decedent owns property in another state. If this is the case, the property may need to go through a separate probate process in the state in which it is located. Consult with an attorney from that state to assist you with this ancillary probate procedure. If such property is owned by a trust in joint tenancy with rights of survivorship, or is transferable upon death (through a Transfer on Death Deed), this procedure is not necessary.

Earlier I briefly mentioned a creditor's role in the probate process. It is important to go through the decedent's mail, bank check registers, income tax returns, safety deposit box, and other personal records to compile a list of all debts and obligations. Do not pay any debts until you have contacted an attorney! An attorney can help compile the list and determine the debt priorities and the validity of the claims.

Even after death, taxes must be paid. The decedent's estate may owe federal and state taxes, so two types of tax returns typically will need to be filed—one for income tax, the other for estate (death) taxes. In some situations, if you are the surviving spouse and are otherwise entitled to file a joint income tax return, you may still file a joint return for the period before the decedent's death. Otherwise the executor or administrator of the estate, or the trustee of the trust, is responsible for filing and paying any estate or death taxes.

Any person who receives property from the decedent's estate may be liable for estate or death taxes owed and not paid by the estate. Ask your attorney for assistance with this process, or at the very least consult an accountant, as the tax laws are changing constantly.

Though many more intricacies are involved, this advice should at least get you started. If you need assistance in finding a private attorney, call the Kansas Bar Association's Lawyer Referral Service, 800-928-3111. Although the prospect of hiring a private attorney may seem expensive, I cannot overstress the importance of completing this process properly. Sometimes the probate courts will not even work with anyone other than an attorney. And remember that the court is not allowed to give you legal advice, so you may find that hiring an attorney is a true necessity.