Kansas Bar Association

A DEATH IN THE FAMILY . . . WHAT SHOULD I DO?

When a loved one dies, we are often too shocked or grieved to think clearly. It is very important for you not to get in a hurry when making decisions regarding your loved one. It is more important to make the right decisions than it is to make quick decisions. While you may need to handle some issues immediately, such as the management of a closely-held business or the management of any perishable or wasting assets, you should give more time and consideration to those decisions that are not immediate.

After a loved one dies it is important that you consult with an attorney, preferably an attorney specializing or concentrating in estate planning and administration. An attorney can provide assistance to you and alleviate some concerns and worries that can be associated with the loss of a loved one. The lawyers of Kansas and the Kansas Bar Association offer this brochure to help you be better prepared for this event.

FUNERAL AND BURIAL ARRANGEMENTS

If the decedent has not informed you concerning his or her wishes, you should consider the alternatives for final disposition of the body. The available options include earth interment, cremation, entombment, or donation of the body to a medical school or other recipient specified by Kansas law. You will need to visit with a funeral director and ask about the cost of the services, should you choose interment, cremation or entombment. The services generally consist of the professional services of the funeral director and staff, grave, grave marker, opening and closing of the grave site and other miscellaneous expenses.

It is possible that the decedent may have a prearranged funeral agreement and the decedent may have prepaid for a funeral or burial. If so, Kansas law requires these funds to be separately accounted for on behalf of the decedent. You should be able to find bank statements or other documents that will tell you whether the decedent has such a prearranged funeral agreement. These funds must be applied to the cost of the funeral according to the terms of the agreement and any remaining funds must be refunded to the estate.

If the decedent did not make such decisions during his or her lifetime, an agent named in a durable power of attorney for health care decisions may have made funeral and burial decisions during the lifetime of the decedent. The authority of the agent extends beyond the death of the decedent with respect to any authority given to the agent to make organ donations, authorize autopsies, or make burial arrangements.

If neither the decedent nor his or her agent made these decisions, then it is the responsibility of the family of the decedent to make funeral and burial arrangements. Once a funeral home has been selected to care for the decedent's body, the funeral director must apply for a death certificate. The funeral director is not required to inform or notify any other government office or person of the death. Either you or the funeral home that you select may request certified copies of the death certificate from the Vital Statistics Division of the Kansas Department of Health and Environment. The Kansas Bar Association recommends that you obtain six to ten certified copies of the death certificate. This generally should be enough, but you may need additional copies in some circumstances. Each corporation or other institution in which the decedent owned stock, bonds or other securities will likely require a death certificate. In addition, each life insurance company that issued a life insurance policy on the decedent will require a death certificate. The decedent may have owned other property that will require a certified death certificate before the property may be transferred to another person.

LOCATE ANY WILLS, TRUSTS, OR OTHER LEGAL DOCUMENTS

As soon as practicable after the decedent's death, the family should try to find the decedent's will or trust, if any. If you have trouble, you may consult with a qualified attorney for assistance in finding such documents. An attorney may provide insight and assistance about where to find these documents. Many people keep these documents in a safe deposit box at their bank while others may store these documents in a safe or desk drawer at their home. If a will or trust agreement exists, it is likely that the attorney who prepared the document will have a copy at his or her office.

The decedent's will, if any, will identify an executor who will be responsible for administering the decedent's affairs. If you find a will, you should present the will to an attorney. The attorney can determine whether probate will be required and what procedures will be involved. Probate is a legal procedure used to determine who will become the lawful owners of the decedent's property. The decedent's trust, if any, will name a trustee. The trustee will be responsible for administering the decedent's property outside of probate.

A will and a trust agreement are two legal documents that will indicate what the decedent's wishes were with regard to the disposition of property upon his or her death. You will need to contact the executor or trustee as soon as possible. If there is no will or trust agreement, a court will name an administrator who will be responsible for administering the decedent's property. The administrator will likely be a surviving spouse, child or next of kin of the decedent.

The person in possession of the will must present it to the district court, either personally or through his or her attorney, within six months of death. Kansas law provides that any person who has possession of the will of a person who dies while legally a resident of Kansas, and knowingly withholds the will from the district court, will be liable for lawyer fees, costs and damages to beneficiaries who are named in the will.

In addition to wills and trust agreements, the decedent may have expressed his or her wishes in other papers. These papers will most often express the decedent's wishes about how to distribute personal items such as furniture, jewelry or any other family heirlooms. The decedent may also express his or her wishes as to the disposition of their body in these papers. Finding these papers may help you through this process and give you confidence that you are making the right decisions.

INVENTORY DECEDENT'S PROPERTY

If the decedent left a will or created a trust, the executor or trustee has the responsibility to inventory the decedent's property. If there is no will or trust agreement, the court will select an administrator to perform this task. In taking this inventory, it is important to realize that there are four primary forms of ownership in which the decedent may have owned property. The forms include:

Individual Ownership:
This is a common and familiar form of ownership, with only the decedent's name on the title or other certificate or paper indicating ownership. Property owned in this form may be transferred according to the decedent's will or by the laws of intestate succession. If the decedent left a will, the law considers the decedent to have died testate and the people to whom the decedent's property is transferred to are considered beneficiaries. If the decedent did not have a will, the law considers the decedent to have died intestate and the people to whom the decedent's property is transferred to are considered heirs-at-law.

Ownership in Trust:
The decedent may have transferred some or all assets to a trust during his or her lifetime. In such case, the trustee will be responsible for inventorying the trust assets and must manage the trust assets according to the trust agreement.

Joint Ownership:
Any property held by the decedent and a third party is held either as "tenants-in-common" or "joint tenancy with rights of survivorship." The decedent's undivided interests held as tenants-in-common transfers to beneficiaries or heirs-at-law just as if the property were in the decedent's name only. Property held by the decedent in joint tenancy with rights of survivorship automatically passes to the surviving joint tenants of the property. The decedent's share will be included in the computation of the decedent's taxable estate, and a tax return may have to be filed. Upon receiving and approving the return, the Kansas Department of Revenue will file the appropriate documentation with the Register of Deeds office in the county where the real estate is located, releasing the lien for state death taxes. A certified copy of the death certificate should be filed, with the legal description of the real estate listed on it (usually in the margin), in the same Register of Deeds office.

Beneficiary Designation Property:
Kansas law permits owners of certain property to title the property with a named beneficiary who will receive the property upon the owner's death. The type of property which may be transferred in this manner ranges from real property (e.g., land, houses) to personal property items such as life insurance, savings bonds, financial institution accounts, securities and motor vehicles. A certified copy of the death certificate is needed to transfer ownership of this type of property to the named beneficiary.

ANCILLARY PROBATE

It is possible that the decedent may own real property in another state in his or her individual capacity or as tenants-in-common. If this is the case, the property must go through a separate probate process in the state in which the property is located. If such property is owned by a Trust, in joint tenancy with rights of survivorship, or is transferable upon death, this procedure is not necessary.

DEBTS AND OBLIGATIONS

It is likely that the decedent left some debts and obligations that may need to be paid. Do not pay these debts until you have contacted an attorney. It is important to gather a list of all debts and obligations and determine their priority. The advice of an attorney can help you in both gathering this list and helping you to determine priority. In addition, the decedent's estate may owe some federal and/or state taxes that will need to be paid.

Finding all of the decedent's assets, debts and obligations will require a thorough examination of the decedent's mail, bank check registers, prior income tax returns and other personal records. Many of these items may be found in the decedent's safe deposit box or other location where the decedent stored valuable information.

TAXES

Generally, there are two types of tax returns that may need to be filed after the decedent's death. One type of return is for income tax and the other is for estate or death tax. If the decedent was required to file a return and pay taxes for the year of death, an income tax return must be filed and taxes must be paid for that year by the normal due date (April 15 of the following year). If a decedent dies before April 15, the executor, trustee or administrator must file the decedent's taxes for the prior year. If you are the surviving spouse of a decedent, and are otherwise entitled to file a joint return for the year, you may file a joint income tax return. The exception to this is if you have remarried before December 31 of such year.

A federal estate tax return and state death tax return may also be required to be filed. The executor, trustee or administrator is responsible for filing and paying any estate or death tax. However, any person who receives property from the decedent's estate is liable for any estate or death taxes owed and not paid by the estate. If there is a probate estate or revocable trust, a Federal Tax Identification Number will need to be obtained for the purpose of filing a fiduciary income tax return (Form 1041) for the estate or trust. Your attorney can help you with this process. The Internal Revenue Service has a form that you will need to complete. In determining if and how much death taxes may be due, all of the decedent's assets (which includes any taxable gifts during the decedent's lifetime) are included, whatever the type or form of ownership. As of January 1, 2001, an estate of less than $675,000 in gross value will not need to file a federal return. This amount is scheduled to increase in the coming years. The federal estate tax return is due nine months following death.

This pamphlet is based on Kansas law and is published to provide general public information, not specific legal advice. The facts involved in a specific case determine the application of the law.

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