Will

Question 1

Will def

Answer 1

testament

K.S.A. 59-601 states that “any person of sound mind, and possessing the rights of majority, may dispose of any or all of his or her property by will, subject to the provisions of this act.

Question 2

Will requirements

Answer 2

identify the testator;

written with testamentary intent;

testator must have testamentary capacity to execute the will; and

must be executed with the statutory testamentary formalities.

K.S.A. §59-606.

Question 3

Capacity

Answer 3

K.S.A. § 59-601
age requirement (18 or 16 if married)
capacity requirement.

Question 4

Ways to document capacity

Answer 4

medical evaluation
Exchanging handwritten letters with the testator
videotaping an interview with the testator

Question 5

Beneficiaries

Answer 5

biological, adopted, posthumously born
may want to exclude: adopted adults, illegitimate

Question 6

Devise v Bequest

Answer 6

Real estate is devised. Personal property is bequeathed.

Question 7

Specific vs Percentage bequests

Answer 7

Specific - expenses may significantly deplete the residuary estate and leave little to the residuary beneficiaries. One solution: cap the percentage share for any significant cash bequests (e.g., “$100,000, but not to exceed 10% of the value of the net residue of my estate”).

Percentage - arguments among benes about who gets what items

Question 8

Special considerations - residence

Answer 8

If not owned in joint tenancy with the spouse it should be designated separately from the residue to pass to the spouse to avoid its distribution being treated as passing income tax from the estate pursuant to I.R.C. § 663(a)(1).

This would also put it in the last category for paying the decedent’s debts under K.S.A. 59-1405.

A devise of a house does not ordinarily include household effects.

Question 9

Special considerations - real estate

Answer 9

unless the will references all real estate a person owns (or owns in a particular state, county, or other location) a complete and accurate legal description is advisable.

mortgage or other encumbrance on specifically devised real estate may require the executor to exonerate (remove) the debt unless the will states otherwise (e.g., the devise is “subject to any mortgage”).

Question 10

Special considerations - oil and gas

Answer 10

Royalties under an oil and gas lease pass with the land unless otherwise specified.

Question 11

Special considerations - stock splits, dividends

Answer 11

pass with a specific bequest of stock.

Question 12

Special - debt to testator

Answer 12

The debt of a beneficiary to a testator is not discharged unless the will specifically so provides and is then treated as any other bequest. K.S.A. 59-1204.

Similarly, naming a debtor as executor does not automatically discharge the debt. K.S.A. 59-1205.

Question 13

Special - charitable bequest

Answer 13

correct name and location of the charity is critical. If a particular purpose is desired, that purpose should be so stated.

check Internal Revenue Service Publication 78 to be sure that the charity is listed as having I.R.C. § 170(c) status.

To maximize the tax deduction, specify that charitable bequests are not to bear the burden of any federal or state death taxes.

Question 14

Separate Writing - tangible personal property

Answer 14

For will - (K.S.A. 59-623) disposition of items of non-business tangible personal property - referenced in will

For inter vivos trust - K.S.A. 58a-418

Question 15

Separate writing - requirements

Answer 15

in the handwriting of the testator or be signed by the testator.

prepared before or after execution of the will and may be altered after its preparation.

Items described with reasonable certainty.

statute specifically excludes money, evidence of debt, documents of title, and securities, “properties used in trade or business.”

best to specify questionable items (e.g., investment grade diamonds or a tractor if possibly evidencing a trade or business) in the will itself.

should be separately designated (i.e., apart from the residue) for distribution to avoid carrying income of the estate to the recipient(s) for tax purposes. I.R.C. § 663(a)(1).

Question 16

Disinheriting family member

Answer 16

a will provision, in an attempt to disinherit a person who, on the date of the testator’s death, is an heir of the testator, is ineffective unless there is a valid disposition of the property to someone else.

If there is no other disposition, then the property passes by intestacy.

No affirmative statement of disinheritance is required.
But: to ensure the testator’s intent is clear, include a provision in the will stating that the testator has intentionally left nothing to the person that is to be disinherited.

Question 17

Trust to avoid conservatorship

Answer 17

provision creates a “catch-all” trust to avoid problems where the executor or trustee may be otherwise required to distribute assets to a minor or incompetent person.

The beneficiary’s interest in this trust, however, is “vested” for purposes of the rule against perpetuities and the generation-skipping transfer tax.

uses the word “may” so that the executor/trustee should be free to utilize a Uniform Transfer to Minors Act account if that is more advisable than holding the property in trust.

Question 18

In terrorem clause

Answer 18

(no contest clause) is a clause that provides that, if a beneficiary under the will challenges the will, then the beneficial interest under the will is to be forfeited and the challenger is to take nothing.

clause should also dispose of the share that will be forfeited. For instance, be certain that the challenger’s share does not pass under the antilapse statute to the challenger’s issue, which would be an indirect benefit to the challenger.

Question 19

Severing joint tenancies

Answer 19

One joint tenant cannot, without the consent of the other, dispose of his interest in joint property by will and thereby defeat the right of survivorship.

But: a joint tenancy may be terminated by mutual agreement, as a joint and mutual will, of the joint tenants, if it appears that the parties clearly so intended.

The concern for the will drafter is to clearly provide for termination, if it is intended, and to avoid creating an ambiguity that may give rise to such a claim, if it is not intended.

If severance is intended, the property probably should be retitled. Kansas law allows this to be done by will, however, as long as it is clearly provided and consented to in writing by both parties.

Question 20

Debt and taxes

Answer 20

Unless the will directs a different priority order, K.S.A. 59-1405 specifies the order for appropriating assets for payment of the debts of an estate.

Do not include a provision in a will requiring payment of “all my just debts.”

Question 21

Estate and inheritance taxes

Answer 21

Kansas does not currently have an estate or inheritance tax.

K.S.A. 79-15,126 provides a detailed scheme for apportionment of the federal estate tax.

Question 22

Executor tax liability

Answer 22

The executor is personally liable for unpaid taxes if distribution is made. I.R.C. §§ 2203-2205.

Unless the will provides otherwise, an executor can recover tax attributable to life insurance or power of appointment property from the beneficiary. I.R.C. §§ 2206-2207.

Question 23

Nuncupative wills

Answer 23

Nuncupative (oral) wills are recognized in very limited circumstances,
- “made in the last sickness”
- only with respect to personal property,
- and only if “reduced to writing and subscribed by two competent, disinterested witnesses within thirty days.” K.S.A. 59-608.

Otherwise, all wills must be in writing.

Question 24

Signature by another person

Answer 24

KSA 59-606: the testator’s signature may be affixed to the document by another person if done in the presence of the testator and at the direction of the testator.

Note that if the testator’s signature is written by another person, other parts of the document, including the attestation clause and self-proving affidavit, may need may need to be altered to reflect that fact.

Question 25

Holographic will

Answer 25

unattested will that is written and signed in the testator’s own handwriting.

Kansas does not allow

Question 26

Witnesses

Answer 26

Attested and subscribed in the presence of the testator by two or more competent witnesses who saw the testator subscribe or heard the testator acknowledge the will.”

Question 27

Competency of witnesses

Answer 27

A beneficial bequest made in a will to a subscribing witness thereto is void, unless there are two other competent subscribing witnesses who are not beneficiaries under the will.

But: If such a witness would have been entitled to an intestate share of the testator’s estate in the absence of a will, however, then so much of such share as will not exceed the value of the bequest will pass to the interested witness. K.S.A. 59-604.

But: a spouse is a competent attesting witness to a will in which the other is a beneficiary.

a named executor or the drafting attorney, who has no pecuniary interest in the distribution of the estate, may sign as a witness and does not become “interested” simply by virtue of being named executor or being hired to draft the will (but better to not use executor)

Question 28

Attestation and subscription by witnesses

Answer 28

must occur in the presence of the testator.

Question 29

Self-proving affidavit

Answer 29

In the event a will is self-proved, the testimony of the witnesses is unnecessary in order to have the will admitted to probate, unless the will is contested.

form of the self-proving affidavit is set forth at K.S.A. 59-606.

Question 30

Who may prepare will

Answer 30

KSA 59-605 invalidates any will written by someone who receives a devise or bequest or by someone whose parent, children, issue, sibling, or spouse receives a devise or bequest.

two exceptions:

(a) The writer is related to the testator by blood, marriage, or adoption and the devise or bequest receives is not more than would have been received under intestate succession; or

(b) it affirmatively appears that the testator knew the contents of the will and had received independent legal advice.

Question 31

Revocation of will

Answer 31

(i) by a subsequent writing, (ii) by a physical act, or (iii) by operation of law.

The first two methods require an intent so lack of testamentary capacity or the existence of fraud or undue influence should invalidate a “revocation.”

Under common law, a will also is presumed to have been revoked if the original of the will cannot be found at the time of a testator’s death.

But: can be admitted to probate as a “lost will” if this presumption can be overcome and if the provisions of the will are clearly and distinctly proved.

Question 32

Revocation after divorce

Answer 32

K.S.A. 59-610: the testator is divorced, all provisions in such will in favor of the testator’s ex-spouse are automatically revoked.

property bequeathed to the ex-spouse passes to the contingent beneficiaries who would have received the property if the ex-spouse had predeceased the testator.

statute applies only to wills, however, and not to trusts or other non-probate transfers, such as joint tenancy property, payable-on-death and transfer-on-death designations, and beneficiary designations under retirement accounts or life insurance policies.

Question 33

Revocation after marriage

Answer 33

A will is revoked if, after making the will, the testator marries and has a child, by birth or adoption. K.S.A. 59-610.

Under the common law, however, if a will was prepared for a testator who intended to be married after the execution of the will and the will included provisions for the wife and afterborn children, the will is not deemed revoked.

Question 34

Death of beneficiary

Answer 34

BEFORE death of testator

The general rule is that a bequest will lapse if the beneficiary does not survive the testator and no alternative bequest is provided. (But see antilapse statute)

Question 35

When gift lapses

Answer 35

A lapsed specific bequest will become a part of the residuary estate if the will contains a general residuary clause, unless it appears from the will that it was the intention of the testator that the lapsed bequest pass elsewhere.

In the absence of a residuary clause, the bequest will pass to the heirs of the testator by intestate succession.

Question 36

Antilapse statute

Answer 36

K.S.A. 59-615(a)

• A named beneficiary dies prior to the testator.
• The beneficiary is qualified under the statute – a lineal descendent within six degrees (not step child)
• The beneficiary leaves issue who survive.
• The will has not made a different disposition.

Note re spouse married before: statute may have the unwanted effect of allowing the bequest to pass to the children from a prior marriage of a predeceased spouse.

Question 37

Uniform Simultaneous Death Act

Answer 37

if it cannot be established by clear and convincing evidence that one individual survived another by 120 hours (five days), it is presumed that each person predeceased the other.

Question 38

Uniform Simultaneous Death Act - effect

Answer 38

the property of each person will be disposed of as if he or she survived the other person.

Example: if husband’s will leaves all of his property to his wife, and if she fails to survive, then to his issue,
–and there is a simultaneous death of the husband and wife, the husband’s property will pass under his will to his issue, the wife being presumed to have predeceased the husband.

Question 39

Ademption

Answer 39

when the object given in the will is no longer a part of the testator’s estate at the time of the testator’s death either because the object has been sold or otherwise disposed of (ademption by extinction) or because the testamentary gift has been satisfied by a gift during the testator’s lifetime (ademption by satisfaction).

Question 40

Abatement

Answer 40

If the assets of an estate are less than the total needed to pay all debts, expenses, and bequests, then a portion of the bequests will be “abated,” i.e., not paid, in order to meet the debts and expenses.

K.S.A. 59-1405 sets forth an order in which legacies will be abated where assets are insufficient, as follows:

• Personal property not disposed of by will.
• Real property not disposed of by will.
• Personal property bequeathed to the residuary legatee.
• Real property devised to the residuary devisee.
• Property not specifically bequeathed or devised.
• Property specifically bequeathed or devised.

Question 41

Contractual will

Answer 41

is binding on a person.

may be executed pursuant to a separate contract, or it may be found to be contractual because a joint, mutual, or reciprocal will was executed in reliance of the other will.

Question 42

Joint and mutual will

Answer 42

A joint and mutual will is one document that serves as the will of two or more different persons.

a joint will is, in effect, the separate will of each testator and speaks as to his or her property from the time of his or her death.

It affects only the deceased’s own property or his share in jointly owned property.”

Thus, a joint and mutual will must be probated after the death of both of the testators.

Question 43

Reciprocal wills

Answer 43

wills (one for each person) that mirror each other to set up a unified distribution scheme of both estates.

Question 44

When is a will contractual

Answer 44

A provision in the will for a distribution of property on the death of the survivor;

a carefully drawn provision for the disposition of any share in case of a lapsed residuary bequest;

the use of plural pronouns;

joinder and consent language;

the identical distribution of property upon the death of the survivor;

joint revocation for former wills; and

consideration, such as mutual promises.

Question 45

Effect of contractual will

Answer 45

A contractual will covering all of the estate ordinarily will also control the entire estate of the survivor, including unrelated, after-acquired property.

The usual language in joint, mutual, and contractual wills gives to the survivor a power to use and consume, or in some cases, use and dispose of the property.

Under Kansas law, that power is generally interpreted to allow the survivor to dispose of the property for adequate
consideration, but not by gift, either intervivos or testamentary.

Question 46

Will substitutes

Answer 46

Revokable trust
TOD / POD

Question 47

Revokable trust advantages

Answer 47

Avoid probate
Privacy