KANSAS WILLS AND TRUSTS REQUIREMENTS
Statutory Authority.
Wills: Kansas Probate Code, Kan. Stat., Ch. 59 (Kan. Stat. §§59-101, et. seq.).
Trusts: Kansas Uniform Trust Code, Kan. Stat., Ch. 58a (Kan. Stat. §§58a-101, et. seq.).
Kansas Will Requirements.
To create a valid will in Kansas, a testator must be “of sound mind” and at least 18 years old. Individuals under age 18 who have reached majority due to marriage or legal emancipation may also create a valid will under Kansas law.
A Kansas will must be in writing and 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) and by two competent witnesses. Witnesses must sign in the testator’s presence and must either observe the testator’s signature or hear the testator acknowledge the signature’s authenticity.
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—unless there are at least two other witnesses in addition to the interested witness.
Similarly, 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. Additionally, if there is evidence that the testator had independent legal advice relating to the will, then a devise to the will’s preparer is valid.
Kansas wills need not be notarized, but a will can be made “self-proved” through execution of a notarized affidavit by the will’s testator and witnesses. A self-proved affidavit can be executed at the same time as the will or at a later date while the testator and both witnesses remain living. The executed affidavit serves in place of witness testimony required for admission of a will in probate court.
Self-proved affidavits must be acknowledged before a notary or other officer authorized to administer oaths. Within the affidavit, 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.
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. Kansas expressly prohibits testators from leaving property to foreign governments or corporations organized under the laws of another country.
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. Often called a “memorandum of personal property,” the list 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.
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Amendment, Revision, and Revocation of Kansas Wills.
A Kansas will can be amended through execution of a codicil or later will setting forth the desired amendments. Likewise, a Kansas will can be revoked through the testator’s execution of a later will, codicil, or other testamentary revocation instrument that expressly revokes the prior will. To be effective, any instrument revoking or amending a will must satisfy all formalities required for creation of a valid will.
A Kansas testator can also revoke a will by burning, tearing, canceling, obliterating, or destroying the document with the intent that it be revoked.
If a testator is divorced after executing a Kansas will, any provisions in favor of the former spouse are deemed to have been revoked. 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.
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.
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, who the testator must ask 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. The purpose of a Kansas 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.
For a valid trust to be created under Kansas law, the settlor must have adequate capacity to create the trust and express an intent to create a trust. For revocable trusts, the capacity required to create, amend, revoke, or add property to a revocable trust is the same as the capacity required to create a valid will. Kansas trusts are assumed to be revocable unless the trust is expressly made irrevocable.
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). The trustee of a Kansas trust must have actual duties to perform, and a trust’s sole trustee cannot also be the trust’s sole beneficiary. Trustees who manage assets are governed by the “prudent investor rule” and must exercise reasonable care, skill, and caution in carrying out their duties.
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, or by exercising a power of appointment in favor of a trustee.
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, and 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.
A Kansas trust is invalid to the extent its creation was induced through fraud, duress, or undue influence. 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. A provision in favor of the trust’s preparer can also be valid if there is evidence that the settlor received independent legal advice relating to the trust.
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. The list instructs the trustee to distribute items identified in the list to specific beneficiaries. Individual items and beneficiaries must be identified with reasonable certainty. The instrument creating the trust must refer to the list of personal property, and the list must be either written in the settlor’s handwriting or signed by the settlor.
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.
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, or 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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Estate Taxes: Kansas does not impose either estate or inheritance taxes. Large Kansas estates may still be liable for federal estate taxes.
Simplified Probate: Kansas allows for non-probate transfer of personal property (including bank accounts) up to $40,000 through execution of a small-estate affidavit. A small-estate affidavit cannot be used for real estate or estates valued over $40,000. The affidavit is executed by a successor of the decedent and allows for transfer of assets when presented to the current holder of the asset.
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 other options for transfer of assets outside of probate. POD (payable-on-death) and TOD (transfer-on-death) designations, which provide for automatic transfer of an asset to a beneficiary upon an owner’s death, can be used in Kansas for a variety of assets. For instance, POD designations can be added to financial accounts and CDs, and TOD designations can be used with assets like registered securities and brokerage accounts.
Similarly, some assets—like retirement accounts and life insurance—allow owners to name a beneficiary who automatically takes ownership of the asset upon the original owner’s death.
Co-ownership can also be used as a means of bypassing probate in Kansas. Assets co-owned as joint tenants with a right of survivorship automatically transfer to a surviving owner upon the other owner’s death. Kansas does not recognize tenancy by the entireties—a joint ownership form with right of survivorship which, when available, can be used for co-ownership of assets by two spouses.
Transfer-on-Death (TOD) 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. In either case, the TOD designation is added to the deed or title during life, and ownership automatically transfers to the named beneficiary upon the owner’s death. The beneficiary, though, does not acquire present rights over the asset until the original owner’s death actually occurs.
Spousal Shares: To avoid spousal disinheritance, Kansas law grants a surviving spouse a waivable right to an elective share in the decedent spouse’s “augmented estate,” even if the decedent leaves a will saying otherwise. The surviving spouse’s elective share in the augmented estate ranges from three to fifty percent, depending on how long the couple was married. The augmented estate consists of the decedent’s net probate estate, certain assets transferred outside probate, and the value of the surviving spouse’s estate and certain non-probate transfers made by the surviving spouse. A spouse’s elective share further includes a half interest in all real estate in the decedent’s estate that the surviving spouse has not consented to being otherwise distributed.
Kansas also grants surviving spouses an allowance of up to $50,000 from the decedent’s estate and a life estate in a decedent’s homestead that continues to be occupied by the surviving spouse after the decedent’s death. The homestead is exempt from claims against the decedent spouse’s estate other than claims for taxes, liens arising from purchase of or improvements on the property, and liens voluntarily consented to by both spouses.
If a married Kansas resident dies without a will, the surviving spouse’s share is either the entire estate (if the decedent leaves no surviving issue) or half of the estate (if the decedent has one or more children).
Kansas 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.
Creating a will or trust does not have to be difficult or intimidating. However, certain circumstances—like second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)—can add a layer of complexity and result in unforeseen long-term consequences. Whenever any out-of-the-ordinary issues are present, it’s a good idea to consult with an experienced attorney familiar with and licensed under the laws of the relevant jurisdiction.
