General DefinitionA decedent's intestate estate is defined as any part of the estate not effectively disposed of by a valid will.
Order of DistributionIf the decedent leaves a spouse and no children nor issue of a previously deceased child, all the decedent's property shall pass to the surviving spouse. If the decedent leaves a spouse and a child or children, or issue of a deceased child or children, one-half of such property shall pass to the surviving spouse. Sec. 59-504.
If the decedent leaves children or descendants of a deceased child and no spouse, all of the estate passes to the surviving children, or in equal shares to the surviving children and the living descendants, if any, of deceased children. However, descendants collectively take only the share their parent would have taken had he/she been living. Sec. 59-506.
If the decedent leaves no surviving spouse or descendants, but leaves a surviving parent, all of the estate passes to surviving parent(s). Sec. 59-507.
If the decedent leaves no surviving spouse, descendants or parents, the respective shares of his or her property which would have passed to the parents, had both of them been living, shall pass to the heirs of such parents respectively. Sec. 59-508.
If no person is entitled to receive property of the decedent then the property will pass to the living heirs of the last spouse dying prior to the death of the intestate and if there is no such heir or heirs, then the estate escheats to the state. Sec. 59-514.
Common Law or Community PropertyKansas is a common law property state.
CapacityAny person of sound mind, who is at least 18 years of age, may dispose of any or all of his or her property by will. Sec. 59-601.
DraftingA will must be in writing and signed at the end by the testator. A valid will must be attested and witnessed by two or more persons, who saw the testator subscribe or heard the testator acknowledge the will. Sec. 59-606.
An oral will made in the last sickness is valid only with respect to personal property. However, than oral will must be reduced to writing and subscribed by two competent, disinterested witnesses within 30 days. Sec. 59-608.
HeirsAn "heir" includes those who are entitled under the statutes of intestate succession to the real and personal property of a decedent on the decedent's death intestate, unless otherwise defined or limited by the will.
ModificationsTo revoke or alter a will, the testator may create a new will or by some write a declaration of revocation or alteration and execute it with the same formalities with which the will was required by law to be executed. Alternatively, the testator may revoke a will by burning, tearing, obliterating or destroying it with the intent and for the purpose of revoking it. Sec. 59-611.
If after making a will the testator marries and has a child, the will is revoked. If after making a will the testator is divorced, all provisions in the will in favor of the testator's spouse are revoked. Sec. 59-610.
Naming of Personal RepresentativeLetters of administration are granted to the executor, if any is named in the will, if he or she is legally competent and accepts designation. Sec. 59-701.
Letters of administration for an intestate estate will be granted in the following order:
- The surviving spouse or next of kin, or both, as the court may determine.
- If all such persons are incompetent or unsuitable, or do not accept, administration will be granted to one of the creditors or a nominee.
- Administration may be granted to any other person, whether interested in the estate or not. Sec. 59-705.
Submission of WillNo will is effective to pass real or personal property unless it has been admitted to probate. Sec. 59-616. The will must be submitted to the probate court within six months of the testator's demise. Sec. 59-617.
NotificationsNotice of the appointment of a personal representative must be published in a newspaper once a week for three consecutive weeks. Sec. 59-709(a). The personal representative must also give notice to known or reasonably ascertainable creditors prior to the expiration date for filing a claim. Sec. 59-709(b).
InventoryWithin 30 days of a personal representative's letters of appointment, the personal representative must make an inventory stating the full and fair value as of the date of death of the decedent of all real estate and tangible personal property owned by the decedent located in Kansas and of all intangible property owned by the decedent or wherever located. Sec. 59-1201.
Elective Share and Homestead AllowanceThe surviving spouse has a right to take an elective-share amount equal to the value of the elective-share percentage of the augmented estate, determined by the length of time the spouse and the decedent were married to each other. The percentage ranges from 3% for couple married for one year to 50% for couples married for 15 years or more. Sec. 59-6a202(a). However, in no event will the surviving spouse receive less than $50,000. Sec. 59-6a202(b).
A surviving spouse is also entitled to the homestead or, in lieu of the home, may elect to receive a homestead allowance of $50,000. The homestead or homestead allowance is exempt from and has priority over all demands against the estate.
The homestead shall be valued as a life estate interest in the equity of the real estate comprising the homestead. Sec. 59-6a201(k).
Debts and DistributionsIf the assets of an estate are insufficient to pay in full all demands against it, payment will be made in the following order:
- Reasonable funeral expenses.
- Expenses of the last sickness of decedent, including wages of servants.
- All judgments or liens on the property of the decedent must be paid in the order of their priority.
- All other demands including the cost of any appropriate tombstone or marker. Sec. 59-1301.
If at any time prior to final settlement it appears that there is sufficient money to satisfy all the demands against an estate, the executor or administrator, on order of the court, may make payment of legacies and distribution of shares, except that specific legacies must first be satisfied. Sec. 59-1503.
If there are no surviving heirs of the decedent, the personal representative must convert the personal property into money and collect the rents, income and profits from the real estate. If no one claims as heir, devisee or legatee within six months after the appointment of the administrator, the administrator must sell any real estate and close the estate and remit the proceeds of the estate to the state treasurer. Sec. 59-901.
Kansas repealed its estate tax in 2010. Notice 10-7.
Income Tax Charitable Deductions and/or Credits
Kansas allows a taxpaying resident to deduct itemized charitable gifts in the same manner as the IRS. Sec. 79-32, 120(a)-(b).
Kansas also provides tax paying residents with a tax credit for contributions made to qualified community service organizations. A community service organization is defined as an organization performing community service, crime prevention or health care services in Kansas and which has obtained tax-exempt status from the Service under Sec. 501(c)(3). Kan. Stat. Ann. §79-32, 195(b). The credit is limited to 50% of the contribution amount in the year of the gift and 70% if the gift is made to an organization in a rural area (population 15,000 or less). In no event shall the credit exceed $4,130,000. Unused credit amounts will be refunded to the donor. Businesses and individuals not subject to Kansas income tax may sell any available tax credit to a business or individual for an amount not less than 50% of the credit value. A transferred credit may be used to offset up to 100% of a business or individual's Kansas tax liability. Transferred credits may be carried forward up to five years, but must be claimed within 10 years of the original gift date. Sec. 79-32, 197, 197(a).
Gift Annuity Requirements
Kansas, a "conditional exemption" state, provides an exemption from securities regulation under Sec. 17-12a201(7). for a security of an organization that is excluded from the definition of "investment company" under Sec. 3(c)(10)(B) of the investment company act of 1940. This section provides exemption from securities regulation in Kansas for a non-profit organization (i) operated exclusively for religious, educational, benevolent, charitable, fraternal, social, athletic, fire protection or reformatory purposes, or as a chamber of commerce or trade or professional association and (ii) is excluded from the definition of an "investment company" under Sec. 3(c)(10)(B).
Exemption QualificationsKansas Administrative Regulation 81-4-4 specifies registration requirements for debt securities of nonprofit issuers, but subsection (b) of that regulation provides that registration is not required if "the issuer is excluded from the definition of an investment company, and the security is issued in exchange for assets contributed to a fund pursuant to section 3(c)(10)(B) of the investment company act of 1940. Subpart (iii) under that federal law subsection specifically pertains to assets contributed to a charitable organization in exchange for issuance of charitable gift annuities.
Disclosure LanguageKansas does not require specific disclosure language in an issuing charity's gift annuity contracts.
Reserve RequirementsKansas does not require an issuing charity to hold any amount in reserve.
Annual Filing RequirementsNo annual reporting is required.
State Contact InformationSteven C. Wassom, CPA
Chief Regulatory Officer
Office of the Kansas Securities Commissioner
A division of the Kansas Insurance Department
109 SW 9th, Suite 600
Topeka, KS 66612