Frequently Asked Questions
Wills and Other Important Documents
What is a "Power of Attorney"?
A power of attorney is a document authorizing another person, either a lawyer or non-lawyer, to act as your agent or "attorney" in fact. This differs from hiring an attorney as in that instance, you are asking that person to advise and represent you in legal matters. When you sign a power of attorney, you are permitting that person to act on your behalf in various situations, such as signing papers for you or taking care of your affairs. Power of attorney can be for a specific situation, such as buying or selling a house, or in general to handle all matters. Kansas passed the Uniform Durable Power of Attorney Act which sets the guidelines for powers of attorney and are intended to remain in effect even if you later become disabled or incapacitated (such as becoming brain dead after an accident, or stricken with Alzheimer's disease).
What is a Will? A trust? An estate?
A will is a legal document (in proper legal form) which dictates how your assets, or estate, should be distributed after your death. There are many technicalities which must be met in order to sign a legal Will such as being of a certain age and of sound mind, and having qualified witnesses to your signature. Kansas does not recognize holographic wills, that is, a will that is entirely written, dated, and signed by the individual alone.
A trust is an agreement in which one party (called a trustee) holds legal title to property and manages it for your benefit or for the benefit of the person(s) of your choice.
An estate is simply your interest in real or personal property, such as land, bank accounts, cars, houses, and items of sentimental or financial value. You clearly do not have to be rich to have an "estate"; you do not have to be rich to need a Will. Estate planning, then, is the taking into account not only the applicable laws, but also your own wishes in preparing for the disposition of your property at death.
What is an executor/executrix?
Part of your responsibility in preparing a Will is deciding whom to appoint to carry out the directions and requests in your Will. This person is called an executor, or if female, an executrix. If the person you selected cannot or will not serve in that capacity, the probate court will appoint someone else.
Why must property go through probate?
When a person dies with property, probate allows a court to determine who succeeds to the ownership of the property. Without it, there could be real confusion as to the ownership of property. Sometimes people die without a Will, or intestate. In that case, courts follow the rules of intestate succession; that is, Kansas law determines ownership of the property (for example, usually one-half goes to the surviving spouse and the other half is divided equally among the children). Probate court, then, is helpful in avoiding and settling the ownership disputes that may arise after someone dies.
Some items are never heard in probate court, such as the beneficiary designation under life insurance policies. Property held in joint tenancy, retirement plans, and revocable trusts (that is, trusts which holds only legal title to your property) also avoid probate court.
Noteworthy, however, is the fact that while these devices may avoid probate court, they do not avoid estate and inheritance taxes.
So which is better, a revocable trust or a Will?
There are advantages and disadvantages to both. For example, while a revocable trust (also known as a living trust) offers more privacy than a Will, and can avoid probate court where a Will cannot, there may be some income tax consequences in administering the trust. It is best to let an attorney who practices estate planning review your specific situation and help you decide what is right for your estate.
I want to leave my property to my children. What are my options?
This is where things can become confusing, depending on your intentions. You can leave all of your assets to your surviving spouse, who in turn could leave the assets to the children according to your surviving spouse's estate. The following are a few things you may want to consider.
You must decide whether you want your assets distributed equally or unequally among the children.
You must decide if these assets are to be distributed to the children outright or held in trust until they attain a certain age. For minor children, it is normally best to hold assets in trust until they at least reach the age of majority (age 18 in Kansas). If the assets are indeed held in trust, you must decide if the assets are to be distributed to then outright upon reaching the predetermined age, or to be distributed at the trustee's discretion for purposes such as health, education, starting a home or business, etc.
You may decide to hold the assets in trust for your children for their entire lifetimes. This could guarantee them financial security in later life, provide for your children's children, ensure your child's spouse does not receive the assets through divorce or at your child's death, and even avoid the assets being subject to estate or inheritance taxes at a later date.
How do I plan my estate to manage my affairs in the event I become incapacitated?
Many people work hard to leave their estate in order upon their death. What is most often missed is the possibility that you could become disabled or incapacitated prior to death. Failure to provide for this contingency can lead to a court-ordered conservatorship (a guardian appointed to manage the affairs of an incompetent person). You can protect yourself from this in several ways:
- Revocable trusts specifically provide for such contingencies. The named trustee (or his or her named successor) takes over to manage the property for your benefit.
- Kansas has passed the Uniform Durable Power of Attorney Act to deal with this very issue. You simply authorize someone to act to manage your affairs for your benefit should you become incapacitated.
- There are specific powers of attorney to handle just your health care decisions on your behalf. This is a "Durable Power of Attorney for Health Care Decisions." Often this specific power is given to a spouse or other close family member.
- You can execute a Living Will.
Where do I get copies of birth or death certificates? Marriage or divorce records?
For those events that occurred in Kansas certificates and records are available only from the Office of Vital Statistics, an agency of the Kansas Department of Health an Environment. You simply fill out the proper form (which the Office can provide you) and return it in person or by mail to the Office. Identification may be required, and expect to be charged a nominal fee for each copy requested. If you live outside Topeka, it is best to call the Office as they have taped messages on how to obtain any of these documents.
The mailing address/location:
The Office of Vital Statistics
Curtis State Office Building
1000 SW Jackson, Suite 120
Topeka, Kansas, 66612-2221
The building location is southeast of the Capitol building.
Phone number: (785) 296-1400
FAX number: (785) 296-8075
Which are the "important papers" I should keep in a safe place?
Certain papers, documents and items are very important and should not be lost or left in an unsafe place. Many people put such papers in a safe deposit box at a bank or they may have a small fire-resistant lock-box at home. Either way, it is a good idea to keep important papers such as the following in a very safe place:
- Deed to your house or any real estate
- Last Will and Testament
- Title to your car, motorcycle, boat, etc.
- Lease or rental agreements
- Signed contracts
- Power of Attorney
- Receipts and/or warranties for major purchases
- Insurance policies
- Bonds or other securities
- Birth and death certificate
- Living Will (although copies of this should be given to your doctor, family, clergy)
- Marriage license
- Divorce decrees
- Expensive jewelry and heirlooms
- Court documents.
Do senior citizens have special driving restrictions?
Not really. Under some circumstances, some elders might have to pass a vision test each year. However, people with certain medical conditions may also have to pass a vision test each year, regardless of their age.
For additional information on legal matters may be found at the following websites: