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Probate

What is “Probate”?   

If you’ve recently lost a family member, you may need probate help.   Or maybe you’re not sure.   (That’s wise.  It’s not a simple question.)  Probate is the formal process of having a judge oversee the management of a deceased person’s assets, property, and debts, and ultimately giving that property to the “right” people.
 
“Probate” is not one system.  
“Probate” is many different procedural tools, involving many different statutes.  It involves considerable amounts of strategy, timing decisions, and tough judgment calls.  The ultimate outcomes range from cheap to expensive, laser-focused to all-encompassing, and from “fairly quick” to “horribly slow.”  It depends on many factors.
  
Probate is Not “do-it-yourself” (DIY).   It’s far too complex, and rule-bound.   It is virtually the only area of law where you are not even allowed to represent yourself.  It’s so complex and rule-bound that courts require you to be represented by a lawyer.  Probate is not even something that a generalist lawyer, or a specialist in some other area of law, should dabble in.   They’ll waste time, be inefficient, and miss valuable strategy options. 

Different Levels of Court Involvement.  Your probate options include several different levels of judicial supervision.   Generally, I try for the lowest level we are eligible for, because that can (often) save time and money. 

Multiple Paths Through Probate.  There are multiple different “avenues” or “procedural options” through the jungle of probate procedure.   Deciding which one is best depends on timing and urgency, how certain we are about creditors (e.g., the number of them, size of debts, and likelihood that they’ll file a claim).   Choosing the best procedural path often depends on the total dollar amount of “probate assets” (i.e., “probate assets” does NOT mean all the assets of the deceased person.  Not even close.  It’s the total value of those assets that we cannot pass down to family in some non-probate way, so they must be taken through the probate process.)  Generally, any asset that can be passed down in a non-probate way, I’ll help you do that. 

How to Know Whether We Need Probate?  Whether Probate is needed for a particular person’s death is Not a Yes or No question.   I help you decide, asset by asset.  The correct question is “which assets, if any, must go through probate – and which procedural path is the optimal one, given that collection of assets?”   On many assets, there is “another way.”    I will always help you figure that out, and we’ll use the fastest, cheapest, best way - asset by asset. 

“Is Probate Expensive?”  Not terribly, but that's the wrong question.   If the only way to get a particular asset (or set of assets) passed down to family is to take them through probate, then the right question is “how much more are the assets worth, than the cost of going through probate?”  My fees are in line with all true experts in Kansas Probate Law.  The total cost is dependent on many factors that are unique to each case.   If an asset MUST go through probate, then it’s worth doing (unless, perhaps, the market value is lower than the probate costs).

“Strategy?  Seriously?? What’s at Stake?     Answer:  “creditors’ claims.”   The amount of your inheritance that can be lost – Or Not Lost – to creditors (businesses that the deceased person owed money to, including huge medical bills from final illness) – that amount “at stake” is often vastly greater than the legal fees.   (Example:  $6,000 in legal fees, wise probate choices and strategic timing, saving you from losing $100,000 of the inheritance to the deceased’s creditors.  This example is realistic, and common.)  Kansas probate law is harsh and unforgiving to creditors of a deceased person.  They can lose their claims forever, easily.  But only under certain circumstances.  They definitely have legal rights that you must respect, and deal with carefully.  You want to be informed and make decisions intelligently here, if your goal is to preserve the inheritance for family.  Good strategy can save family a small fortune.  The amount “at stake” often is vastly bigger than any legal bill. 

The Goal – a Realistic and Healthy Viewpoint:  In a probate scenario, the goal is not simply to “avoid probate.”  There are many different goals, sometimes competing with each other.  Generally, one major goal is to “probate only those assets that we cannot pass down any other way.”   Another: “manage the risk of creditor claims.”  Often another goal is to “preserve harmony in the family” by being “open, honest, fair and transparent.”   Sometimes, balancing these requires a slightly different choice about probate procedure.   In the long run, avoiding fractured families, hurt feelings, accusations or suspicions, and even family litigation – it will be money and time well-spent to choose intelligently and thoughtfully the best probate procedure to employ. 

Misconceptions vs. Basic Facts:  There are some very common misconceptions about wills and probate.   Start your probate research by at least understanding the reality on these simple points.   Here are a few FAQ’s, below.  

Does Having a “Will” Avoid Probate?   A will is a document that tells the probate judge what you wanted done with your property when you were deceased.  A will only “speaks” (i.e., works, has any effect) “in probate,” meaning once a probate estate has been “opened” or initiated in court.  It does not avoid probate.  
 
Named in the will as Executor or Personal Representative?   You do Not have any powers or rights yet.   The deceased person merely “nominated” you as being in charge, by writing you into the will, but the judge gets the final say, and he must “appoint” you before you have any power or authority to deal with the deceased person’s property.   If any family member files papers objecting to you being appointed, then it’s highly likely the judge will not appoint you, but will instead appoint someone else whom no family member objects to.   That might even be a third party that charges for their time.  You want to avoid this.  Do not act before you are authorized by the judge, especially if you fear any family member might eventually “second guess” you, once they have all the facts. 

Is it Safe to start moving property?  No.  Don’t take property from the home, or try to move or close any accounts, yet.   Call me first.   Each asset is subject to a different set of rules, depending how that asset is titled, and where it’s held.  And you need to make an intelligent decision about the best probate procedure to use, before moving any assets.  If you do it without court authority, or do it wrong, you could end up being legally liable to someone.
 
Caution – Family Disagreements About How to Proceed:  Watch out for the feelings and opinions of others in the family.   Seriously - take my word on this, until we talk.  Done wrong, a probate scenario can lead to a lawsuit among family - or at least lead to hurt feelings and suspicions of unethical behavior that last for years, or the rest of your life.   Done right, a probate scenario can be healing and cathartic, and actually bring a family closer together. 

“What if we all agree? Can we do something different than what Dad wanted?”  Yes.  Kansas allows a “valid family settlement agreement.”  It basically means that if everyone who would take property under the plan agrees to do something different, then they can, and the judge will enforce that new plan.   In the right scenario, it’s an extremely valuable tool.  A “generalist” lawyer would not even know it exists.
 
Delays?  How long does probate take?  "It Depends."    The time required to resolve a probate case can range all the way from 1 - 2 months (in a few scenarios), up to two or more years (in rare, bad scenarios).  A Kansas probate estate most often requires 6 to 9 months to resolve.   (Perhaps not what you wanted to hear, but know that it can be twice that long in MO and many other states; probate in Kansas is not all that bad, compared to other places.)

“I Move Them As Fast As Allowed.”  I get probates done as quickly as the rules will possibly allow.   I have a huge incentive to - I often don’t get paid until the very end of the process.  (Probate law is fairly unique that way.)  Think about that.   The months of waiting is a major complaint of most folks who have to go through probate.  I have a big financial incentive to push the process as quickly as the rules will allow it to go. 

My Goal: To Make The Probate Process as Smooth, Efficient, and Painless as Possible for You.  I will admit that I've never had a client remark, at the end of a probate estate, "That was fun! Let's do it again."  BUT, I have had MANY clients remark "That was not nearly as bad as I feared.  Thank you for helping that go so smoothly."  My goal is to make the probate process go as smooth and efficient as possible, and for the process to feel "painless" to the client.  Most clients feel we achieve that goal.  (Most "probate lawyers" cannot say that.) 

Creditor’s Claim?  Does a deceased person owe you money?  I can help you get paid.   There are two ways:  (a) If the decedent’s family opens a probate, you must "file a claim," in exactly the proper way, by the deadline, or you lose your claim forever.  Or (b) what if the family chooses not to open a probate estate?  The family may intelligently choose to Not open any probate, or strategically choose to postpone opening a probate until your claim for that debt has legally expired and become unenforceable.  If that’s the case, then you must act - - Fast.  You must file a Creditor’s Probate. 

Creditors’ Probates?  Yes.  This powerful tool is easily forgotten, and rarely used.  It should be used far more often.  I can handle one for you.   When a creditor of the deceased person needs to consider filing to open a probate estate about that decedent, in an attempt to get repaid, then I counsel the creditor about whether it makes financial sense, in their circumstances.  It may or may not; it depends on many factors.  If it does make good economic sense, then I can get it done.  (I.e., sometimes hourly, sometimes flat fee). 

“Trust Estate Administration”  - - Related and Very Similar to Probate, but Potentially Much Better.   Assets held in a trust at death generally don’t have to go through probate.   But that does not mean that managing an Irrevocable Trust, after your spouse or parent dies, is simple, or D.I.Y.   It’s not.   It’s often easier, quicker, and cheaper than probate, but there are still many rules, duties, risks of liability, plus tax returns to be filed.  You need expert guidance, to avoid missteps.   The scenarios and issues are innumerable, so I won’t try to summarize them on this site.   Just call me.  We’ll customize the advice you need or can afford, to fit you.  Often, just one or two vitally important tips can quickly save you from major missteps, and you can handle all the rest without me.