Kansas Petition for Probate

Introduction

Key Things to Know

1. 1

   Filing: a petition for probate of will (K.S.A. 59-2220) and/or a petition for administration (K.S.A. 59-2219), filed in the district court of the county where the decedent lived if the decedent owned real property there, otherwise in the county of residence or any county where the decedent owned an interest in real property. For a nonresident decedent, any county where estate is left (K.S.A. 59-2203). No statewide petition form is named on this page, so ask the court clerk; the court's form controls.

2. 2

   No one has authority over estate assets until the court appoints a personal representative and letters issue. Being named executor in a will does not by itself allow anyone to collect assets, pay debts or transfer property. Do not distribute, pay heirs or sell estate property before appointment or before the creditor period runs.

3. 3

   A will of a Kansas resident generally must be the subject of a petition within six months after death or it is not effectual to pass property (K.S.A. 59-617). An innocent beneficiary may petition within 90 days after learning of and gaining access to a withheld will (59-618). The person with custody must deliver the will to the court, with no day count stated (59-621). Knowingly withholding it more than six months after death can make the holder liable for attorney fees, costs and damages (59-618).

4. 4

   Letters testamentary go to the executor named in the will if legally competent and accepting; otherwise letters of administration with the will annexed (K.S.A. 59-701). With no will, the order runs to the surviving spouse or next of kin, then creditors or their nominee, then any other suitable person if in the estate's best interests (59-705). A nonresident may be granted letters only after appointing a resident agent in the county where the appointment is made (59-706, 59-1706). The court decides who serves and appointment is not guaranteed.

5. 5

   Notice: the hearing notice is published once a week for three consecutive weeks in a county newspaper, with first publication within 30 days after the order fixing the hearing. Within seven days after first publication the petitioner mails a copy to each known heir, devisee and legatee other than the petitioner. The hearing is not earlier than 10 days nor later than 30 days after the last publication (K.S.A. 59-2209, 59-2222). Notice may be waived or ordered otherwise by the court.

6. 6

   Creditors: the published notice tells creditors to exhibit demands within four months from first publication, and known or reasonably ascertainable creditors may also get actual notice. A claim is timely until the later of four months from first publication or, for a known or reasonably ascertainable creditor, 30 days after actual notice (K.S.A. 59-2236, 59-2239). Tort claims follow a separate rule (59-2239(2)). Do not pay heirs or distribute property before the creditor period runs.

7. 7

   Bond: every fiduciary must file a bond with sufficient sureties before entering on the trust, in an amount the court directs, not less than 125 percent of the personal property and probable annual income from real estate (K.S.A. 59-1101). It may be excused when the will expressly waives it, or when all known heirs (no will) or all devisees and legatees file written waivers (59-1104). Routes: the Kansas simplified estates act (59-3201 to 59-3206) is requested in the petition and the court decides at the hearing whether the estate is simplified or supervised. Not every estate needs probate; a small estates affidavit is covered on DocDraft's small-estate-affidavit page.

Kansas Requirements for Petition for Probate

• Petition for Probate or Administration

  Kansas uses a petition for probate of will and/or a petition for administration, and one petition can do both. A petition for administration must say whether administration is sought under the Kansas simplified estates act (K.S.A. 59-2219, 59-2220).

• District Court Venue

  The petition goes to the district court of the county where the decedent lived if the decedent owned real property there, otherwise the county of residence or any county where the decedent owned an interest in real property. For a nonresident decedent, any county where estate is left (K.S.A. 59-2203).

• Six-Month Limit to Offer the Will

  Generally, a will of a Kansas resident is not effectual to pass property unless a petition is filed within six months after death, except as the code provides; one exception gives an innocent beneficiary 90 days when a will was withheld (K.S.A. 59-617, 59-618).

• Order of Priority for Letters

  Letters testamentary go to the competent, accepting executor named in the will. With no will, priority runs to the surviving spouse or next of kin, or persons they select, then creditors or their nominee, then, if in the estate's best interests, any other person (K.S.A. 59-701, 59-705).

• Nonresident Needs a Resident Agent

  A nonresident may be granted letters only after appointing in writing an agent residing in the county where the appointment is made, with the agent's acceptance filed in the district court (K.S.A. 59-706, 59-1706).

• Hearing Notice and Mailing

  Notice is published once a week for three consecutive weeks. Within seven days after first publication the petitioner mails a copy to each known heir, devisee and legatee other than the petitioner (K.S.A. 59-2209, 59-2222).

• Creditor Notice and Claims Period

  Creditors are told to exhibit demands within four months from first publication, or 30 days after actual notice for a known or reasonably ascertainable creditor, whichever is later (K.S.A. 59-2236, 59-2239). Tort claims follow a separate rule (K.S.A. 59-2239(2)).

• Bond and Waivers

  A bond is not less than 125 percent of the personal property and probable annual income from real estate. It may be excused by the will or by written waivers of all known heirs or all devisees and legatees (K.S.A. 59-1101, 59-1104).

• Petition Contents

  A petition for administration must state whether administration is sought under the Kansas simplified estates act and, if it is, one or more reasons for seeking it (K.S.A. 59-2219). Other contents follow the court's form and rules.