Probate and Probate Alternatives
Kansas City Probate Attorney with Over 14 Years of Experience
Helping People with Difficult Issues at Difficult Times
After the death of a loved one, there is a lot to consider. In addition to mourning and funeral planning, unresolved legal issues may arise regarding ownership of the deceased loved one's assets. At the Law Office of Ray Kowalczewski, P.A., we are experienced with helping our clients deal with the sometimes complex legal issues that arise after the death of a loved one.
We tailor our services to meet our clients' individual needs and concerns. With more than 14 years of experience, we will use our extensive knowledge to help alleviate any fears you may have regarding the legal issues you may face after the death of a loved one. We take a hands-on approach to providing our clients with the guidance they need throughout the process, and we are always happy to answer any questions you have.
To schedule your initial consultation, call 913-310-WILL (9455).
What is probate?
When someone dies owning assets in their sole name, the ownership of these assets must be transferred to a living person. In a nutshell, the purpose of probate is to retitle the deceased person's assets (from the deceased person to living persons) and to pay all legitimate creditors of the deceased. Because the probate process is the last retitling process for the deceased, this process is somewhat formal and designed to give the public notice of the proceedings. The public notice gives all creditors, heirs or other interested persons the opportunity to have their positions heard. The probate process establishes clear title to, or ownership of, the deceased person's assets. Upon death, before title can pass to the heirs, all claims against the deceased's assets must be eliminated. Because probate is a court proceeding, it is a public process and all documents that are filed on behalf of the probate estate become public records.
The probate process can be (but not always) a lengthy, costly and time consuming process. Even if the deceased person had a will, any asset in his or her sole name must go through probate. A will simply serves as instructions to the probate court about how to handle the assets.
A Summary of the Probate Process
We assist our clients through the probate process from start to finish. The probate process includes:
- Opening the Estate and Appointing an Executor.
In Kansas, this must be done within six (6) months of the date of death of the deceased if a Will is to be probated. In Missouri, the timeframe is twelve (12) months. This is accomplished by filing the Petition and various other documents. If waivers are obtained from all the heirs, this process can go fairly quickly (one or two weeks). If waivers are not obtained from all the heirs, a hearing must be held on suitability of the Executor to serve in that role. This latter process can take as many as six weeks. Upon successful appointment, the Court will issue Letters Testamentary to the executor. These Letters give the executor legal authority to act on behalf of the estate.
- Publishing Notice to Creditors and Sending Notice to all Known Creditors.
Kansas law requires that notice to creditors be published. Actual notice must also be sent to all known creditors (e.g., credit card companies, funeral homes, etc.). Creditors have four (4) months from the date the Notice to Creditors is first published in a local newspaper to file a claim with the estate. When a valid claim is filed it should be paid after the four month period has expired. When an invalid claim is filed (a claim you do not believe is owed), the Court will probably have a hearing to determine the validity of the claim. If any of the heirs have expended money on behalf of the estate (prior to it opening), those heirs must also file a claim for reimbursement from the estate.
- Filing an Inventory.
Thirty (30) days after the appointment of the Executor, an Inventory and Valuation must be filed with the Court. The purpose of this inventory is to inform the Court (and all interested persons) the value of the estate. An accurate inventory is important as the Court will monitor the ultimate disposition of the assets (see final accounting below) and compare the final accounting to the Inventory to verify all assets are accounted for.
- Administering the Estate.
The administration of the estate is the longest period of the probate process. Among other things that occur during this period, the executor (with the attorney's assistance) gathers, maintains and consolidates assets, as appropriate. One of the first tasks the executor should do is open an estate checking account. Some estates that receive a certain level of income are required to file income tax returns (when gross income exceeds $600.00 in one year). This is also the period of time where any assets are sold, typically the deceased's residence.
- Completing a Final Accounting and Petitioning for Final Settlement.
When the administration of the estate is complete, a final accounting must be filed with the Court. This final accounting must account for all receipts and disbursements of the estate. In addition, a Petition for Final Settlement is filed that asks the Court to review the estate and verify everything is valid.
- Closing the estate.
After the Court has signed off on the final accounting and verified everything is valid, the estate can be officially closed. The estate cannot be closed before: 1) six months after the date of the deceased's death and 2) the expiration of the four month notice to creditor period.
Probate Timeframe
On average, the process generally takes six to eighteen months, depending on the complexity and problems that arise and how well the heirs agree. For more complex probate estates or when the heirs do not agree, the process can take much longer.
Alternatives to Probate
If your loved one's assets are under a certain dollar amount, there are provisions that may be able to help you avoid the full probate procedure. Some of these options include:
- Probate by affidavit
- Small estate procedures
- Determination of heirship
Typical Probate Costs
The Cost of Probate varies on a case by case basis depending on the unique circumstances of each probate estate. The method of calculating Probate Cost differs in Missouri and Kansas. However, several generalizations can be made.
In Kansas, the fee of the executor and lawyer are not fixed by any law or court rule. They must be reasonable and reflect the fair value of the services actually rendered in relation to the size of the Probate Estate. The fees of the executor and lawyer are subject to the approval of the Probate Court. The Probate Costs include (1) court costs & filing fees which are set by law, (2) publication costs, (3) bond premiums, if required, (4) executor fees, and (5) attorney fees. Most attorneys charge by the hour for this type of case. As a general guide, you can refer to the Missouri minimum fee schedule below.
In Missouri, the Cost of Probate is computed based on the value of the Probate Estate. Missouri law provides a minimum fee for both the executor and the attorney. This minimum fee is as follows (the best case scenario if the executor and attorney are the same person):
| Probate Estate | Typical Probate Costs |
| $100,000 | $3,300 |
| $250,000 | $7,425 |
| $500,000 | $14,050 |
| $750,000 | $20,300 |
| $1,000,000 | $26,550 |
| $2,000,000 | $46,550 |
Without proper planning, for a married couple, the probate costs may apply at the death of each spouse (increasing the total cost). However, it is my experience that the bulk of the Probate Costs are usually incurred upon the death of the surviving spouse (when the assets are transferred to the children or other heirs).
Unless the particular circumstances of your estate plan require the supervision of the Probate Court (e.g., an anticipated will contest), you can see why most people try to avoid the probate process if possible.
The Law Office of Ray Kowalczewski, P.A. can guide you through the probate process minimizing your efforts in this time-consuming process. To learn how we can help you, schedule a consultation by calling 913-310-WILL (9455). During this appointment, we will listen to your specific concerns and provide you the appropriate amount of guidance during this difficult time for you and your family. Our firm is open 8:30-5:00, Monday through Friday, with Saturday appointments available by request. MasterCard, Visa and Discover accepted. Call Ray today to set up a consultation.
Click here to download The Probate questionnaire.
The Law Office of Ray Kowalczewski, P.A.
8826 Sante Fe Drive, Suite 218
Overland Park, KS 66215
Telephone: 913-310-WILL (9455)
Fax: 913-888-4037
Serving Johnson County area including: Leawood, Lenexa, Merriam, Mission, Olathe, Overland Park, Prairie Village, Shawnee.
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