An estate plan can manage a person’s assets and their end-of-life care and ensure their heirs and beneficiaries are provided for after their death. One of the important documents in an estate plan is a will. Your will names an executor to distribute your estate, names the heirs who will receive those assets, and lists other wishes, such as a guardian for minor children.
A will can give individuals a sense of certainty about how things will be handled after their passing. Unfortunately, this may not always be the case. After your death, interested parties may be able to contest your will, whether for valid or selfish reasons. If these contests are successful, the wishes listed in your will may be deemed invalid, and a prior will or Kansas inheritance laws may be used instead. To prevent this, you want to take steps that prevent will contests from being successful.
Who Can Contest a Will in Kansas?
Under state law, the only parties who can contest a will are:
- Beneficiaries or heirs in the will
- An heir or relative who stands to benefit if the will contest is successful
If a relative or person would inherit assets through state inheritance laws or through the prior version of the will, they may have grounds to contest the will.
What Are Valid Reasons to Contest a Will?
A party who is able to challenge a will can’t do so because they dislike what they did or didn’t receive from the will. There has to be a legally valid reason to contest the will. In Kansas, these grounds include:
- New Will: If a more recent and valid version of the will is discovered that the court was unaware of, the new will is used instead.
- Undue Influence: The creator of the will, or the testator, was under unreasonable influence from a third party, which caused them to alter the contents of the will in favor of that party.
- Lack of Mental Capacity: The testator didn’t have the mental capacity to create a will and didn’t understand the scope of their assets, estate, familial ties, or the legal significance of creating and signing a will.
- Fraud: The testator was defrauded by being convinced they were signing a different document or providing assets to a fake entity. Fraud also covers forged wills.
- Technical Flaws: A will may not be executed properly, such as being signed improperly or distributing property not in the estate. In Kansas, the creation, signing, or modification of a will has to be done in the presence of two witnesses who also sign the will.
A will contest must be brought under one of these reasons. If the court deems the will to be invalid, it will use the most recent version of the will that is considered valid. If there is no prior version of the will, the estate will be distributed by Kansas’s inheritance laws.
Steps to Protect Your Will
You can’t prohibit will contests, but you can take steps to prevent a contest from being successful. These steps include:
- Planning early. If you start creating wills at an earlier age, claims such as lack of necessary capacity will be less likely to be successful. These claims are generally successful when the testator was nearing the end of their life, and their mental awareness is more easily in question.
- Creating a valid will. By having an estate planning attorney review your will and ensuring it follows Kansas law, the will is more likely to be found valid.
- Implementing a no-contest clause. This doesn’t prevent interested parties from contesting your will, but it does make it potentially harder to do so. A no-contest clause can lessen or eliminate any inheritance an heir would receive if they contest the will and are unsuccessful.
- Setting up a trust. A revocable living trust can reinforce the provisions in your will. It can assign beneficiaries, place a trustee in charge of distributing assets, and avoid probate court.
- Updating your will. Every several years and after life changes, it’s important to review and update a will. This will provide a series of past wills for the court to review, which can make it harder to contest a valid will. It also means that if a will is invalidated, the prior will may not be a significant change.
FAQs
Q: How Can You Avoid a Will Challenge?
A: It’s not possible to completely prevent a will contest, but you can limit the chances of a challenge succeeding. Avoiding a will challenge can be done by:
- Having a no-contest clause
- Communicating your wishes with your family
- Ensuring your will is legally valid
- Proving your mental capacity
- Reviewing and updating your will over time
- Talking with an estate planning attorney
Q: How Long Do You Have to Contest a Will in Kansas?
A: In Kansas, an heir, beneficiary, or person who would benefit from the will being overturned can file to contest a will. This must be done within four months of the initial notice publication to creditors. If the identity of creditors is known or reasonably certain, interested parties have 30 days to contest a will.
Q: How Do I Avoid Probate in Kansas?
A: One of the primary ways a person can protect their family members and estate from dealing with probate is the use of a revocable living trust. When an individual creates a trust, they can name themselves trustee and name a successor trustee who will handle the assets in the trust after the individual’s death. Because the assets are always owned by the trust, they never pass to the state’s ownership after death. This saves beneficiaries significant time, stress, and money by keeping a significant portion of an estate out of probate court.
Q: What Is the Inheritance Law in Kansas?
A: Under Kansas inheritance law, a spouse receives all assets in an estate if the deceased has no children or grandchildren. If the deceased does, the spouse receives half of the assets, and the children and grandchildren receive the other half. When the deceased has no spouse, all assets go to children and grandchildren. When there is no spouse, children, or grandchildren, the inheritance goes to the deceased’s parents.
Contact Stange Law Firm
If you’re concerned that your will may be contested, an attorney can review the unique circumstances of your estate and heirs to determine how to protect you. The Overland Park estate planning attorneys with Stange Law Firm can help.
