Session of 2023
HOUSE BILL No. 2130
By Committee on Judiciary
1-23
AN ACT concerning the Kansas probate code; increasing certain dollar
amounts; relating to allowance to spouse and minor children;
supplemental elective share amount; transfers within two years of
death; homestead or homestead allowance; payment of benefits to
certain relatives; small estates affidavit for personal property; remission
of court costs for small estates; exhibition of demands and allowance
without a hearing; refusal to grant letters of administration; appealable
orders and bond; requests for transfer from magistrate to district judge;
amending K.S.A. 59-6a202, 59-6a205, 59-1507a, 59-2215 and 59-2237
and K.S.A. 2022 Supp. 59-403, 59-6a215, 59-1507b, 59-2287, 59-2401
and 59-2402a and repealing the existing sections.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 2022 Supp. 59-403 is hereby amended to read as
follows: 59-403. When a resident of the state dies, testate or intestate, the
surviving spouse shall be allowed, for the benefit of such spouse and the
decedent's minor children during the period of their minority, from the
personal or real property of which the decedent was possessed or to which
the decedent was entitled at the time of death, the following:
(a) The wearing apparel, family library, pictures, musical instruments,
furniture and household goods, utensils and implements used in the home,
one automobile, and provisions and fuel on hand necessary for the support
of the spouse and minor children for one year.
(b) A reasonable allowance of not more than $50,000 $75,000 in
money or other personal or real property at its appraised value in full or
part payment thereof, with the exact amount of such allowance to be
determined and ordered by the court, after taking into account the
condition of the estate of the decedent.
The property shall not be liable for the payment of any of decedent's
debts or other demands against the decedent's estate, except liens thereon
existing at the time of the decedent's death. If there are no minor children,
the property shall belong to the spouse; if there are minor children and no
spouse, it shall belong to the minor children. The selection shall be made
by the spouse, if living, otherwise by the guardian of the minor children. In
case any of the decedent's minor children are not living with the surviving
spouse, the court may make such division as the court deems equitable.
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Sec. 2. K.S.A. 59-6a202 is hereby amended to read as follows: 59-
6a202. (a) (1) The surviving spouse of a decedent who dies a resident of
this state has a right of election, under the limitations and conditions stated
in this act, 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, in
accordance with the following schedule:
If the decedent and the spouse The elective-share
were married to each other: percentage is:
Less than 1 year............................................. Supplemental amount only
1 year but less than 2 years............................ 3% of the augmented estate
2 years but less than 3 years.......................... 6% of the augmented estate
3 years but less than 4 years.......................... 9% of the augmented estate
4 years but less than 5 years.......................... 12% of the augmented estate
5 years but less than 6 years.......................... 15% of the augmented estate
6 years but less than 7 years.......................... 18% of the augmented estate
7 years but less than 8 years.......................... 21% of the augmented estate
8 years but less than 9 years.......................... 24% of the augmented estate
9 years but less than 10 years........................ 27% of the augmented estate
10 years but less than 11 years...................... 30% of the augmented estate
11 years but less than 12 years...................... 34% of the augmented estate
12 years but less than 13 years...................... 38% of the augmented estate
13 years but less than 14 years...................... 42% of the augmented estate
14 years but less than 15 years...................... 46% of the augmented estate
15 years or more............................................ 50% of the augmented estate
(2) If the decedent and the surviving spouse were married to each
other more than once, all periods of marriage to each other are added
together for purposes of this subsection. Periods between marriages are not
counted.
(b) If the sum of the amounts described in K.S.A. 59-6a207,
subsection (a)(1) of K.S.A. and 59-6a209(a)(1), and amendments thereto,
and that part of the elective-share amount payable from the decedent's
probate estate and nonprobate transfers to others under subsections (b) and
(c) of K.S.A. 59-6a209(b) and (c), and amendments thereto, is less than
$50,000 $100,000, the surviving spouse is entitled to a supplemental
elective-share amount equal to $50,000 $100,000, minus the sum of the
amounts described in those sections. The supplemental elective-share
amount is payable from the decedent's probate estate and from recipients
of the decedent's nonprobate transfers to others in the order of priority set
forth in subsections (b) and (c) of K.S.A. 59-6a209(b) and (c), and
amendments thereto.
(c) If the right of election is exercised by or on behalf of the surviving
spouse, the surviving spouse's homestead allowance, and family
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allowance, if any, are not charged against but are in addition to the
elective-share and supplemental elective-share amounts.
(d) The right, if any, of the surviving spouse of a decedent who dies a
nonresident of this state to take an elective share in property in this state is
governed by article 8 of chapter 59 of the Kansas Statutes Annotated, and
amendments thereto.
Sec. 3. K.S.A. 59-6a205 is hereby amended to read as follows: 59-
6a205. The value of the augmented estate includes the value of the
decedent's nonprobate transfers to others, not included under K.S.A. 59-
6a204, and amendments thereto, of any of the following types, in the
amount provided respectively for each type of transfer.:
(a) Property owned or owned in substance by the decedent
immediately before death that passed outside probate at the decedent's
death. Property included under this category consists of:
(1) Property over which the decedent alone, immediately before
death, held a presently exercisable general power of appointment. The
amount included is the value of the property subject to the power, to the
extent that such property passed at the decedent's death, by exercise,
release, lapse, in default, or otherwise, to or for the benefit of any person
other than the decedent's estate or surviving spouse.
(2) The decedent's fractional interest in property held by the decedent
in joint tenancy with the right of survivorship. The amount included is the
value of the decedent's fractional interest, to the extent that such fractional
interest passed by right of survivorship at the decedent's death to the
surviving joint tenant other than the decedent's surviving spouse.
(3) The decedent's ownership interest in property or accounts passing
to another upon decedent's death. The amount included is the value of the
decedent's ownership interest, to the extent that the decedent's ownership
interest passed at the decedent's death to or for the benefit of any person
other than the decedent's estate or surviving spouse.
(4) Proceeds of insurance, including accidental death benefits, on the
life of the decedent, if the decedent owned the insurance policy
immediately before death or if and to the extent that the decedent alone
and immediately before death held a presently exercisable general power
of appointment over the policy or its proceeds. The amount included is the
value of the proceeds, to the extent that they were payable at the decedent's
death to or for the benefit of any person other than the decedent's estate or
surviving spouse;.
(b) Property transferred in any of the following forms by the decedent
during marriage:
(1) Any irrevocable transfer in which the decedent retained the right
to the possession or enjoyment of, or to the income from, the property if
and to the extent that the decedent's right terminated at or continued
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beyond the decedent's death. The amount included is the value of the
fraction of the property to which the decedent's right related, to the extent
that such fraction of the property passed outside probate to or for the
benefit of any person other than the decedent's estate or surviving spouse.
(2) Any transfer in which the decedent created a power over income
or property, exercisable by the decedent alone or in conjunction with any
other person, or exercisable by a nonadverse party, to or for the benefit of
the decedent, the creditors of the decedent, the decedent's estate, or
creditors of the decedent's estate. The amount included with respect to a
power over property is the value of the property subject to the power, and
the amount included with respect to a power over income is the value of
the property that produces or produced the income, to the extent that the
power in either case was exercisable at the decedent's death to or for the
benefit of any person other than the decedent's surviving spouse or to the
extent that the property passed at the decedent's death, by exercise, release,
lapse, in default, or otherwise, to or for the benefit of any person other than
the decedent's estate or surviving spouse. If the power is a power over both
income and property and the preceding sentence produces different
amounts, the amount included is the greater amount.
(c) Property that passed during marriage and during the two-year
period next preceding the decedent's death as a result of a transfer by the
decedent if the transfer was of any of the following types:
(1) Any property that passed as a result of the termination of a right
or interest in, or power over, property that would have been included in the
augmented estate under subparagraph (a)(1), (2), or (3), or under
subparagraph (c)(2), if the right, interest, or power had not terminated until
the decedent's death. The amount included is the value of the property that
would have been included under those subparagraphs, if the property were
valued at the time that the right, interest, or power terminated, and is
included only to the extent that the property passed upon termination to or
for the benefit of any person other than the decedent or the decedent's
estate, spouse, or surviving spouse. As used in this subparagraph,
"termination," with respect to a right or interest in property, occurs when
the right or interest terminated by the terms of the governing instrument or
the decedent transferred or relinquished the right or interest, and, with
respect to a power over property, occurs when the power terminated by
exercise, release, lapse, default, or otherwise, but, with respect to a power
described in paragraph (a)(1), "termination" occurs when the power
terminated by exercise or release, but not otherwise.
(2) Any transfer of or relating to an insurance policy on the life of the
decedent if the proceeds would have been included in the augmented estate
under subparagraph (a)(4) had the transfer not occurred. The amount
included is the value of the insurance proceeds to the extent that the
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proceeds were payable at the decedent's death to or for the benefit of any
person other than the decedent's estate or surviving spouse.
(3) Any transfer of property, to the extent not otherwise included in
the augmented estate, made to or for the benefit of a person other than the
decedent's surviving spouse. The amount included is the value of the
transferred property to the extent that the aggregate transfers to any one
donee in either of the two years exceeded $10,000 $25,000.
Sec. 4. K.S.A. 2022 Supp. 59-6a215 is hereby amended to read as
follows: 59-6a215. A surviving spouse is entitled to the homestead, or in
lieu thereof the surviving spouse may elect to receive a homestead
allowance of $50,000 $75,000. The homestead or homestead allowance is
exempt from and has priority over all demands against the estate. The
homestead or homestead allowance is in addition to any share passing to
the surviving spouse by way of elective share.
Sec. 5. K.S.A. 59-1507a is hereby amended to read as follows: 59-
1507a. (a) If not less than 180 days after the death of an individual entitled
at the time of death to a monthly benefit or benefits under title II of the
social security act or under any veterans administration program or public
or private retirement or annuity plan, all or part of the amount of such
benefit or benefits, not in excess of $5,000 $10,000, is paid to: (1) The
surviving spouse,; (2) one or more of the deceased's children, or
descendants of the deceased's deceased children,; (3) the deceased's father
or mother,; or (4) the deceased's brother or sister,. Preference being shall
be given in the order named if more than one request for payment has been
made by or for the named individuals,. Such payment shall be deemed to
be a payment to the personal representative of the decedent and shall
constitute a full discharge and release from any further claim for such
payment to the same extent as if such payment had been made to an
executor or administrator of the decedent's estate.
(b) The provisions of subsection (a) shall apply only if an affidavit
has been made and filed with the appropriate governmental office or
private company responsible for the benefit by the surviving spouse or
other relative by whom or on whose behalf request for payment is made
and such affidavit shows: (1) The date of death of the deceased,; (2) the
relationship of the affiant to the deceased,; (3) that no executor or
administrator for the deceased has qualified or been appointed,; and (4)
that, to the affiant's knowledge, there exists at the time of the filing of such
affidavit, no relative of a closer degree of kindred to the deceased than the
affiant.
Sec. 6. K.S.A. 2022 Supp. 59-1507b is hereby amended to read as
follows: 59-1507b. When a resident of the state dies, whether testate or
intestate, if the total assets of the estate of the decedent subject to probate
do not exceed $40,000 $75,000 in value, any personal property of
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whatever nature transferable to the decedent's estate by any entity or
person shall be transferred to the successor or successors of the decedent,
if entitled thereto by will or by intestate succession, without having been
granted letters of administration or letters testamentary, upon such
successor's or successors' furnishing the entity or person with an affidavit
showing entitlement thereto. Transfer of such personal property to the
successor or successors shall be deemed to be a transfer to the personal
representative of the decedent, and the receipt of the successor or
successors shall constitute a full discharge and release from any further
claim for such transfer to the same extent as if the transfer had been made
to an executor or administrator of the decedent's estate. The affidavit
required herein shall be deemed sufficient if in substantial compliance with
the form set forth by the judicial council.
Sec. 7. K.S.A. 59-2215 is hereby amended to read as follows: 59-
2215. When the total assets of the estate of a decedent or conservatee do
not exceed the sum of $5,000 $10,000 in value, the court may remit the
court costs or any part thereof to such estate.
Sec. 8. K.S.A. 59-2237 is hereby amended to read as follows: 59-
2237. (a) Any person may exhibit a demand against the estate of a
decedent by filing a petition for its allowance in the proper district court.
Such demand shall be deemed duly exhibited from the date of the filing of
the petition. The petition shall contain a statement of all offsets to which
the estate is entitled. The person exhibiting the demand shall provide a
copy of the demand, as filed, to the personal representative of the estate.
The court shall from time to time as it deems advisable, and must at the
request of the executor or administrator, or at the request of any creditor
having exhibited demand, fix the time and place for the hearing of such
demands. Notice of the time and place of the demand hearing shall be
given in such manner and to such persons as the court shall direct.
(b) The verification of any demand may be deemed prima facie
evidence of its validity unless a written defense thereto is filed. Upon the
adjudication of any demand, the court shall enter its judgment allowing or
disallowing it. Such judgment shall show the date of adjudication, the
amount allowed, the amount disallowed and classification if allowed.
Judgments relating to contingent demands shall state the nature of the
contingency.
(c) Any demand not exceeding $5,000 $10,000, other than a demand
by the executor or administrator, duly itemized and verified and which is
timely filed, may be paid by the executor or administrator without
compliance with any of the provisions of this act relating to petition, notice
of hearing, allowance by the court or otherwise. If a written defense to the
petition of the executor or administrator for a final settlement and
accounting is timely filed by any interested party which takes issue with
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payment of the demand by the executor or administrator, at the hearing on
the petition the burden of proof shall be upon the executor or administrator
to establish that the demand was due and owing by the estate. If the
demand, or any part thereof, is disallowed by the court, the accounting of
the executor or administrator shall not be allowed as to the disallowed
demand, or part thereof.
Sec. 9. K.S.A. 2022 Supp. 59-2287 is hereby amended to read as
follows: 59-2287. (a) The district court, in its discretion, may refuse to
grant letters in the following cases:
(1) When the value of real or personal property owned by the
decedent is not greater in amount than is allowed by law as exempt
property and the allowance to the surviving spouse or minor children
under K.S.A. 59-403, and amendments thereto.
(2) When the real and personal estate of the decedent does not exceed
$50,000 $75,000 and the estate is not subject to allowances pursuant to
K.S.A. 59-403, and amendments thereto, or such allowances are waived,
any heir, devisee, legatee, creditor or other interested person may petition
for refusal of letters by giving bond in the sum of not less than the value of
the estate. Such bond shall be approved by the district court and
conditioned upon the creditor's or heir's assuming the obligation to pay, so
far as the assets of the estate will permit, the debts of the decedent in the
order of their preference, and to distribute the balance, if any, to the
persons entitled thereto under the law, except that real estate sold in
accordance with this section shall be deemed to have marketable title as
ordered by the court, and no creditor, heir or other person shall be deemed
to have an interest after passage of six months following the date of death.
(b) Proof may be allowed by or on behalf of the surviving spouse or
minor children before the district court of the value and nature of the
estate. If the court is satisfied that no estate will be left after allowing to
the surviving spouse or minor children their exempt property and statutory
allowances, or that the real and personal estate does not exceed $50,000
$75,000 when the petition is filed by a creditor or heir, the court may order
that no letters of administration shall be issued on the estate, unless, upon
the petition of other creditors, heirs or parties interested, the existence of
other or further property is shown.
(c) When a petition is filed under this section by a surviving spouse
or minor children, notice of the proceeding shall be given pursuant to
K.S.A. 59-2222, and amendments thereto.
(d) Whenever it appears to the court that further proceedings in the
administration of an estate pursuant to this section are unnecessary, the
court shall enter an order terminating the administration of such estate.
Such order shall be made without notice, unless the court otherwise orders,
and it shall be to the effect that, unless further estate of the decedent be
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discovered, all further settlements and other proceedings concerning the
estate be dispensed with and that the surviving spouse and minor children
are relieved of any further obligations with respect to the estate. If further
estate of the decedent is discovered and administration is had on it, such
administration shall not abrogate or invalidate or otherwise affect any
right, title or interest in property transferred or vested pursuant to this
section unless the court, for good cause shown, otherwise determines and
orders.
(e) Any will filed pursuant to this section within a period of six
months after the death of the testator may be admitted to probate after such
six-month period.
Sec. 10. K.S.A. 2022 Supp. 59-2401 is hereby amended to read as
follows: 59-2401. (a) An appeal from a district magistrate judge to a
district judge may be taken no later than 30 days from the date of entry of
any of the following orders, judgments or decrees in any case involving a
decedent's estate:
(1) An order admitting or refusing to admit a will to probate.
(2) An order finding or refusing to find that there is a valid consent to
a will.
(3) An order appointing, refusing to appoint, removing or refusing to
remove a fiduciary other than a special administrator.
(4) An order setting apart or refusing to set apart a homestead or other
property, or making or refusing to make an allowance of exempt property
to the spouse and minor children.
(5) An order determining, refusing to determine, transferring or
refusing to transfer venue.
(6) An order allowing or disallowing a demand, in whole or in part,
when the amount in controversy exceeds $5,000 $10,000.
(7) An order authorizing, refusing to authorize, confirming or
refusing to confirm the sale, lease or mortgage of real estate.
(8) An order directing or refusing to direct a conveyance or lease of
real estate under contract.
(9) Judgments for waste.
(10) An order directing or refusing to direct the payment of a legacy
or distributive share.
(11) An order allowing or refusing to allow an account of a fiduciary
or any part thereof.
(12) A judgment or decree of partial or final distribution.
(13) An order compelling or refusing to compel a legatee or
distributee to refund.
(14) An order compelling or refusing to compel payments or
contributions of property required to satisfy the elective share of a
surviving spouse pursuant to K.S.A. 59-6a201 et seq., and amendments
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thereto.
(15) An order directing or refusing to direct an allowance for the
expenses of administration.
(16) An order vacating or refusing to vacate a previous appealable
order, judgment, decree or decision.
(17) A decree determining or refusing to determine the heirs, devisees
and legatees.
(18) An order adjudging a person in contempt pursuant to K.S.A. 59-
6a201 et seq., and amendments thereto.
(19) An order finding or refusing to find that there is a valid
settlement agreement.
(20) An order granting or denying final discharge of a fiduciary.
(21) Any other final order, decision or judgment in a proceeding
involving a decedent's estate.
(b) An appeal from the district court to an appellate court taken
pursuant to this section shall be taken in the manner provided by chapter
60 of the Kansas Statutes Annotated, and amendments thereto, for other
civil cases.
(c) Pending the determination of an appeal pursuant to section
subsection (a) or (b) of this section, any order appealed from shall continue
in force unless modified by temporary orders entered by the court hearing
the appeal. The supersedeas bond provided for in K.S.A. 60-2103, and
amendments thereto, shall not stay proceedings under an appeal from the
district court to an appellate court.
(d) In an appeal taken pursuant to section subsection (a) or (b) of this
section, the court from which the appeal is taken may require an
appropriate party, other than the state of Kansas, any subdivision thereof,
and all cities and counties in this state, to file a bond in such sum and with
such sureties as may be fixed and approved by the court to ensure that the
appeal will be prosecuted without unnecessary delay and to ensure the
payment of all judgments and any sums, damages and costs that may be
adjudged against that party.
Sec. 11. K.S.A. 2022 Supp. 59-2402a is hereby amended to read as
follows: 59-2402a. (a) When a petition is filed in the district court and a
district magistrate judge is assigned to hear such petition, any interested
party may request the transfer of the matter to the chief judge for
assignment to a district judge if the petition is:
(1) To admit a will to probate;
(2) to determine venue or a transfer of venue;
(3) to allow any claim exceeding $5,000 $10,000 in value;
(4) for the sale, lease or mortgage of real estate;
(5) for conveyance of real estate under contract;
(6) for payment of a legacy or distributive share;
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(7) for partial or final distribution;
(8) for an order compelling a legatee or distributee to refund;
(9) for an order to determine heirs, devisees or legatees; or
(10) for an order which involves construction of a will or other
instrument.
(b) When a request for such transfer is filed less than three days prior
to the commencement of the hearing, the court shall assess the costs
occasioned by the subpoena and attendance of witnesses against the party
seeking the transfer. Such request may be included in any petition, answer
or other pleading, or may be filed as a separate petition, and shall include
an allegation that a bona fide controversy exists and that the transfer is not
sought for the purpose of vexation or delay. Notice of such request shall be
given as ordered by the court.
Sec. 12. K.S.A. 59-6a202, 59-6a205, 59-1507a, 59-2215 and 59-2237
and K.S.A. 2022 Supp. 59-403, 59-6a215, 59-1507b, 59-2287, 59-2401
and 59-2402a are hereby repealed.
Sec. 13. This act shall take effect and be in force from and after its
publication in the statute book.
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