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. 

When a family member dies

When a loved one dies, you have to deal with the emotional pain and grief—and you also may have to handle his or her final affairs. And depending on whether your loved one made plans or executed an estate plan, the journey ahead of you may be longer and more difficult than expected.

Your immediate concern should be whether your loved one left instructions regarding the disposition of the body, or had in place a pre-paid funeral plan or life insurance intended to cover the costs of the funeral. If the loved one failed to mention these things to you, you may have to search for documents such as a will, trust, or list of accounts and belongings.

I advise all of my clients to make a list of all of their accounts, insurance policies, stocks, etc., for their family members. Without such a list or a will, the family members may have a difficult time tracking down all of the assets. You may also find this information in bank statements, as Kansas law requires these funds to be separately accounted for on behalf of the person who is deceased (known in legal terms as "the decedent").

If you are able to find information regarding the disposition of the body, consider yourself lucky. If you cannot, then you must consider several alternatives. You could choose earth interment, cremation, entombment, or donation of the body to a medical school or other recipient specified by Kansas law. If you choose interment, cremation, or entombment, how will you pay for the funeral? Do you have access to any of the loved one's bank accounts, either by being named a joint owner or by being designated as the payable-on-death (POD) beneficiary or by having a power of attorney (POA) over the deceased?

Typically, a POA terminates upon the maker's death, except that the attorney-in-fact can still make organ donations, authorize autopsies, or dispose of the body after the maker's death.

The funeral director will apply for a death certificate. If you are the decedent's executor, it will be your responsibility to inform other government offices (such as Social Security) of the death. Either you or the funeral home may request certified copies of the death certificate. If you choose to do so, contact the Vital Statistics Division of the Kansas Department of Health and Environment, www.kdheks.gov/vital/death.html.

Request at least six to 10 certified copies of the death certificate. That's because each institution in which the decedent owned stocks, bonds, or securities, and each insurance company that issued a life insurance policy on the decedent, will require a certified copy of the death certificate. In addition, the decedent may have owned other property, such as real estate, that requires a death certificate in order to be transferred.

Locating the will, trusts, transfer-on-death deeds, or other estate planning documents is sometimes difficult. If the decedent had an attorney, I strongly recommend that you consult with that attorney regarding those documents. The attorney might have the originals or copies stored at his or her office.

If the decedent owned assets in his or her sole name, then a probate administration may be necessary to transfer title to the rightful owner of those assets. Probate is a legal procedure through the court system, used to determine who will become the lawful owners of the decedent's property, whether that is determined through intestacy (no will) or testacy (existence of a will). The probate process also provides a vehicle for creditors to file their claims against the decedent.

There are exceptions, but 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 that is 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 person named.

By Alexandra R. English
To be continued in November.