Kansas Wills vs. Trusts
Exploring Kansas estate planning can be overwhelming. The Sunflower State offers unique estate planning features including beneficiary deeds for real estate and vehicles, special protections against improper influence, and robust spousal rights. Whether you’re considering a will or trust, understanding the key differences can save your family significant time, money, and stress while preserving your legacy.
Table of Contents
US Map For The Different Will and Trust Requirements by State
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Kansas Will Requirements
A Kansas Last Will and Testament should include:
- Age and Capacity: Testator must be “of sound mind” and at least 18 years old (individuals under 18 who have reached majority due to marriage or legal emancipation may also create a valid will)
- Format: Must be in writing
- Signature: Must be signed at the end of the document by the testator (or by another person in the testator’s presence at the testator’s express direction)
- Witnesses: Must be signed by two competent witnesses
Witness Requirements
For Kansas wills:
- Witnesses must sign in the testator’s presence
- Witnesses must either observe the testator’s signature or hear the testator acknowledge the signature’s authenticity
Interested Witnesses
A Kansas will witnessed by an interested party (i.e., someone who is devised or bequeathed some portion of the testator’s estate) is not invalid. However:
- A devise to an interested witness is deemed void to the extent the share devised to the interested witness exceeds the share of the testator’s estate the interested witness would have received had the testator died intestate
- This limitation does not apply if there are at least two other witnesses in addition to the interested witness
Will Preparer Limitations
A devise in favor of the individual who prepared a will for the testator (or a close relative of that person) is invalid unless:
- The preparer is related to the testator and the devise does not exceed the share the provider (or close relative) would have received if the testator left no will, or
- There is evidence that the testator had independent legal advice relating to the will
Self-Proved Wills
Though Kansas wills need not be notarized, a will can be made “self-proved” through execution of a notarized affidavit by the will’s testator and witnesses. When a will is self-proved:
- It can be admitted to probate without requiring testimony from witnesses
- The affidavit can be executed at the same time as the will or at a later date while the testator and both witnesses remain living
- Self-proved affidavits must be acknowledged before a notary or other officer authorized to administer oaths
- The testator and witnesses attest that the document was voluntarily created as a will and signed while the testator had adequate capacity and was not under duress
The Kansas legislature provides a sample form for a self-proved affidavit, at Kan. Stat. §59-606.
Foreign Beneficiary Restriction
Kansas expressly prohibits testators from leaving property to foreign governments or corporations organized under the laws of another country.
After-Acquired Property
A valid Kansas will is assumed to govern distribution of all assets within a decedent’s estate as of the time of death, including assets obtained after execution of the will, unless the will expresses a different intention.
Personal Property Memorandum
Kansas law permits testators to incorporate by reference a written list setting forth dispositions of specific items of tangible personal property not otherwise addressed in a will. For the memorandum to be valid:
- It must be either written in the testator’s handwriting or signed by the testator
- The devised items and intended recipients must be identified with reasonable certainty
A Kansas memorandum of personal property can be created before or after execution of the relevant will and can be altered by the testator after its initial preparation. The list cannot be used to distribute real estate, cash, promissory notes, title instruments, securities, or items used in trade or business.
Need help creating the right estate plan for your Kansas family?
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Amendment, Revision, and Revocation of Kansas Wills
Amending a Kansas Will
A Kansas will can be amended through execution of:
- A codicil
- A later will setting forth the desired amendments
Any instrument amending a will must satisfy all formalities required for creation of a valid will.
Revoking a Kansas Will
Kansas wills can be revoked by:
- Execution of a later will, codicil, or other testamentary revocation instrument that expressly revokes the prior will
- Burning, tearing, canceling, obliterating, or destroying the document with the intent that it be revoked
Automatic Revocation by Divorce
If a testator is divorced after executing a Kansas will, any provisions in favor of the former spouse are deemed to have been revoked.
Automatic Revocation by Marriage and Birth
If a Kansas testator marries and has a child after executing a will, the will is revoked by operation of law.
Holographic and Oral Wills
Holographic Wills
Kansas law does not recognize holographic wills (i.e., wills written in a decedent’s handwriting). A will written out by hand and signed by the testator can be valid, but only if it is also witnessed by two competent witnesses and otherwise satisfies the formalities for an attested will.
Oral (Nuncupative) Wills
Kansas recognizes oral (or “nuncupative”) wills under specific, limited circumstances:
- The testator must make the statements constituting an oral will while in his or her last sickness
- The statements must be heard by two competent, disinterested witnesses
- The testator must ask these witnesses to witness the oral statements as the testator’s last will
- Witnesses must reduce the oral will’s terms to writing within 30 days of the statements
- Nuncupative wills in Kansas are only effective for dispositions of personal property and cannot be used to distribute real estate
Kansas Trust Requirements
Kansas trusts are primarily governed by the Kansas Uniform Trust Code, enacted by the legislature at Kan. Stat. §§58a-101, et. seq.
Requirements for a Valid Kansas Trust
For a trust to be valid under Kansas law:
- The purpose of the trust must be lawful, not in conflict with state public policy, and possible to achieve
- In general, the purposes of a trust and the trust itself must be to benefit the trust’s beneficiaries
- The settlor must have adequate capacity to create the trust and express an intent to create a trust
- A Kansas trust is invalid to the extent its creation was induced through fraud, duress, or undue influence
Required Trust Elements
Kansas trusts must have:
- A definite beneficiary (subject to exceptions such as for charitable trusts, trusts for the care of animals, and certain trusts created for noncharitable purposes)
- A trustee with actual duties to perform
Sole Trustee/Beneficiary Rule
A trust’s sole trustee cannot also be the trust’s sole beneficiary.
Trust Creation Methods
Kansas trusts can be created through:
- Transfer of property by a grantor to a trustee (either during life or through a will or other testamentary instrument)
- A grantor’s declaration that property is owned as trustee
- Exercising a power of appointment in favor of a trustee
Oral Trusts
Though most trusts are evidenced by a written instrument setting forth the trust’s terms, Kansas law recognizes oral trusts. However:
- The creation and terms of an oral trust must be established by clear and convincing evidence
- A written instrument signed by the settlor is necessary for trusts that deal with real estate, testamentary trusts, and when otherwise required by the Statute of Frauds
Trust Preparer Limitations
A provision in a Kansas trust that benefits the person who prepared the trust instrument (or a close relative of the preparer) is invalid unless:
- The preparer is related to the settlor and does not receive a greater interest in trust property than he or she would receive under intestate succession laws, or
- There is evidence that the settlor received independent legal advice relating to the trust
Revocability
Kansas trusts are assumed to be revocable unless the trust is expressly made irrevocable.
Personal Property Memorandum for Trusts
Similar to a memorandum of personal property incorporated within a Kansas will, a written list setting forth dispositions of specific items of tangible personal property may also be used in conjunction with a Kansas living trust. For a trust memorandum to be valid:
- The instrument creating the trust must refer to the list of personal property
- The list must be either written in the settlor’s handwriting or signed by the settlor
- Individual items and beneficiaries must be identified with reasonable certainty
A personal property list incorporated within a Kansas living trust can be created before or after execution of the relevant trust instrument and can be altered by the settlor after its initial preparation. The list cannot be used to distribute real estate, cash, promissory notes, title instruments, securities, or items used in trade or business.
Trust Termination
Kansas trusts terminate upon:
- Revocation or expiration under the trust’s own terms
- When there is no purpose of the trust remaining to be achieved
- When the trust’s purposes become unlawful, contrary to public policy, or impossible to achieve
A trust may also be modified or terminated by a court upon the petition of the settlor, trustee, and/or beneficiaries. When a trust terminates, the trust’s remaining assets are distributed by the trustee as directed by the trust’s terms or otherwise consistently with the trust’s purposes.
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Special Considerations
Estate Taxes
No Estate or Inheritance Taxes
Kansas does not impose either estate or inheritance taxes. Large Kansas estates may still be liable for federal estate taxes.
Simplified Probate
Small-Estate Affidavit
Kansas allows for non-probate transfer of personal property (including bank accounts) up to $40,000 through execution of a small-estate affidavit. Key points:
- Cannot be used for real estate or estates valued over $40,000
- The affidavit is executed by a successor of the decedent
- Allows for transfer of assets when presented to the current holder of the asset
Summary Administration
A streamlined probate process is also available for small estates. The summary administration process:
- Must be authorized by a probate court on the petition of an estate’s representative
- The court considers factors such as the size of the estate, proximity of heirs, and existence of estate claims when determining whether to allow summary administration
- When granted, the personal representative can take possession of and distribute estate assets without the ordinary, more complicated probate proceedings
Non-Probate Transfers
Along with living trusts, Kansas law offers multiple options for transferring assets outside of probate:
Transfer-on-Death Deeds and Vehicle Titles
Kansas is one of the few states that recognize TOD designations on both real estate deeds (commonly called “beneficiary deeds”) and vehicle titles. Key benefits:
- The TOD designation is added to the deed or title during life
- Ownership automatically transfers to the named beneficiary upon the owner’s death
- The beneficiary does not acquire present rights over the asset until the original owner’s death actually occurs
Spendthrift Trusts
Although the general rule is that creditors of a trust’s beneficiaries may attach a beneficiary’s interest in present or future distributions from a trust, Kansas law recognizes “spendthrift provisions,” which prevent creditors of beneficiaries from attaching trust assets until actually distributed to the relevant beneficiary.
Creditors of a revocable trust’s settlor can attach trust assets as long as the settlor remains living (or, upon death, through estate claims). In the case of irrevocable trusts, settlors’ creditors can attach trust assets that could be distributed for the settlor’s benefit.
Need help creating the right estate plan for your Kansas family?
Our estate planning specialists can help you navigate Kansas’s unique laws and create a personalized strategy.
Wills vs. Trusts: Comparison
| Feature | Wills | Trusts |
|---|---|---|
| When It Takes Effect | After death | Can be immediate (living trust) or after death (testamentary trust) |
| Probate Process | Requires probate | Assets in trust avoid probate |
| Privacy | Public record | Generally private |
| Challenges | Can be challenged in probate court | More difficult to challenge |
| Cost to Create | Generally less expensive | Usually more expensive |
| Ongoing Administration | None until death | May require ongoing management |
| Protection During Incapacity | None (requires separate power of attorney) | Can provide management if grantor becomes incapacitated |
| Kansas Special Feature | Recognizes limited oral wills and beneficiary deeds for real estate and vehicles | Allows both written and oral trusts with strong preparer conflict protections |
Conclusion
Creating a will or trust does not have to be difficult or intimidating for Kansas residents. However, certain circumstances—like second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests—can add complexity and result in unforeseen consequences.
Kansas offers unique estate planning options like beneficiary deeds for real estate and vehicles, special protections against improper influence by document preparers, and robust spousal rights. When any out-of-the-ordinary issues are present, it’s advisable to consult with an experienced attorney familiar with and licensed under Kansas law to ensure your estate plan takes full advantage of the state’s provisions while avoiding potential pitfalls.
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- ✓ Protect assets during incapacity
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Top 5 FAQs: Kansas Wills and Trusts
Q: What are the basic requirements for a valid will in Kansas?
A: A Kansas will must be written, signed by the testator (18+ and of sound mind), and witnessed by two competent people who sign in the testator’s presence.
Q: What’s the difference between a will and a trust in Kansas regarding probate?
A: Wills require probate, a public court process, while trusts (especially living trusts) avoid probate, allowing private and quicker asset distribution.
Q: What are transfer-on-death (TOD) deeds, and how do they work in Kansas?
A: Kansas TOD deeds for real estate and vehicles let you name a beneficiary who inherits the asset directly upon your death, bypassing probate.
Q: What rights does a surviving spouse have in Kansas?
A: A surviving spouse can claim an elective share (3-50% based on marriage length), a $50,000 allowance, and a life estate in the homestead.
Q: Does Kansas have estate or inheritance taxes?
A: No, Kansas has no state estate or inheritance taxes, though federal estate taxes may apply to larger estates.
