Estate Planning in Kansas and Missouri

Same goals, different rules

In the Kansas City area, it is common to live in one state, work in the other, and own property on both sides of State Line Road. That makes estate planning a two-state question for many families.

The goals rarely change from one side of the line to the other. You want to choose who makes decisions if you cannot, choose who receives what you own, and keep your family out of court as much as possible. The rules for reaching those goals, however, come from two separate bodies of law: the Kansas Statutes Annotated (K.S.A.) and the Revised Statutes of Missouri (RSMo).

Plan for incapacity, not only for death

A will does nothing while you are alive. If an illness or accident leaves you unable to manage your affairs, your family needs documents that work now. Without them, they may have to ask a court to appoint a guardian or conservator, a process that is public, slow, and costly.

Most plans include three incapacity documents:

• Durable financial power of attorney. Names someone to pay bills, manage accounts, and deal with banks and agencies for you.
• Durable power of attorney for health care. Names someone to make medical decisions when you cannot.
• Living will or health care directive. Records your wishes about life-sustaining treatment.

Both states generally honor documents validly signed elsewhere. Still, a bank or hospital in one state may hesitate over an unfamiliar form from the other. If you spend real time on both sides of the line, have your documents reviewed with both states in mind.

What makes a will valid

The basic signing rules look alike. In both states, a will must be in writing, signed by the person making it, and witnessed by at least two competent witnesses who sign in that person’s presence.

Neither state accepts a handwritten, unwitnessed “holographic” will signed by a resident. A note in your own handwriting, however clear, will not work without witnesses.

Both states also allow a self-proving affidavit, a notarized statement signed by you and your witnesses at the signing. With the affidavit attached, the court usually does not need to track down your witnesses years later.

Deadlines after death differ

The bigger differences between states come after death, when the will has to reach a court.

A will left in a desk drawer past these deadlines may be worthless. Make sure your personal representative knows where the original is kept.

If you die without a will

Without a will or other transfer plan, state intestacy law picks your heirs. The two states split an estate differently, even for the same family.

If there is no spouse or child, both states look next to parents, then siblings, then more distant relatives.

The default rules leave out people many families care about. An unmarried partner, a stepchild you never adopted, a close friend, and a favorite charity receive nothing. A will, trust, or beneficiary designation is how you include them.

A will does not avoid probate

Many people are surprised to learn that a will is the document a probate court uses to settle an estate. If you want some or all of your assets to skip probate, you need other tools working alongside the will.

In both states, the common tools are joint ownership, payable-on-death and transfer-on-death designations on accounts, beneficiary designations on retirement plans and life insurance, and trusts.

Real estate: TOD deeds and beneficiary deeds

Both states let you name who receives your real estate at death without probate. The deed must be signed and recorded during your lifetime.

• Kansas calls it a transfer-on-death deed, under the Kansas Real Estate Transfer on Death Act. It is recorded with the county register of deeds.
• Missouri calls it a beneficiary deed, part of the Nonprobate Transfers Law. It is recorded with the county recorder of deeds.

The idea is the same, but the forms and statutes are not. A Missouri beneficiary deed will not transfer a Kansas lake house.

How you hold title matters

Both states recognize tenancy in common and joint tenancy with right of survivorship. Kansas presumes a tenancy in common unless the deed clearly says otherwise.

Missouri adds a third option for married couples: tenancy by the entirety. A deed to a married couple generally creates this form unless it says otherwise. It passes property to the surviving spouse and can shield it from one spouse’s individual creditors. Kansas does not recognize tenancy by the entirety. A married couple with a home in Overland Park and a rental in Kansas City, Missouri, may hold those two properties in legally different ways.

Revocable living trusts

A revocable living trust can keep assets out of probate in either state. It also lets a successor trustee manage those assets if you become incapacitated. Kansas trusts are governed by the Kansas Uniform Trust Code. Missouri trusts are governed by the Missouri Uniform Trust Code.

A trust only controls what it owns. After signing, you must fund it by retitling real estate and accounts into the trust’s name and coordinating your beneficiary designations. An unfunded trust often ends up in probate anyway.

For families with property in both states, a trust has one more advantage. Real estate held in your own name in a second state can require a separate “ancillary” probate there. Real estate held in a trust or passed by a TOD or beneficiary deed generally avoids that second proceeding.

Review your plan after life changes

An estate plan needs upkeep. Review your documents after any of these events:

• Marriage or divorce
• The birth or adoption of a child or grandchild
• A move from Kansas to Missouri, or the reverse
• Buying property in the other state
• A large change in your assets
• The death or incapacity of someone named in your documents

Check beneficiary designations most often. They usually control who receives an account or insurance policy, no matter what your will says.

The bottom line

Kansas and Missouri share a metro area, but each has its own estate planning code. If your life, family, or property crosses State Line Road, your plan should account for both states.

This post provides general information about Kansas and Missouri law and is not legal advice. Estate planning depends on your specific facts, and laws change. Talk with a licensed Kansas or Missouri attorney before signing or changing any estate planning documents.