How Real Estate is Handled in Probate in Kansas and Missouri

When someone passes away owning real estate, the property doesn't automatically transfer to their heirs, especially if it’s held in their name alone. In Kansas and Missouri, like in most states, real estate must go through probate unless the property has been titled or transferred in a way that avoids the court-supervised process.

Whether you're an executor, surviving spouse, or heir, understanding how probate affects real estate is crucial. This article explores how real estate is handled in the probate process in Kansas and Missouri, including deeds, title transfers, homestead rights, and what steps can be taken to minimize delay and cost.

Real Estate in Probate: The Basics

In both Kansas and Missouri, probate is the legal process of settling a deceased person’s estate: paying debts, distributing assets, and transferring ownership of property. Real estate typically falls under the category of "probate assets" if it was solely owned by the decedent at the time of death.

If the deceased person owned real estate jointly with another person (like a spouse), or if it was held in a trust or with a transfer-on-death designation, the property may bypass probate altogether. But when real estate is titled only in the deceased person’s name, probate is usually required to legally transfer the title to heirs or beneficiaries.

Kansas vs. Missouri: Key Differences

Kansas Probate and Real Estate

In Kansas, the probate process is governed by the Kansas Probate Code. If a person dies owning real estate in Kansas without a will, the state’s intestacy laws determine who receives the property.

Kansas allows for a streamlined process called a “refusal of letters” for estates valued at less than $75,000, which can help avoid full probate in small estates. However, if real estate is involved, especially in larger estates, probate is generally unavoidable unless estate planning tools like trusts or transfer-on-death deeds were used.

Missouri Probate and Real Estate

Missouri law offers a similar process for small estates and allows for a simplified probate if the estate is worth less than $40,000. For larger estates or those involving multiple parcels of real estate, full probate proceedings are typically required.

Title Transfers: From Decedent to Heirs

During probate, real estate cannot be sold or transferred until the probate court approves the action. The court appoints a personal representative (executor) to manage the estate, who then has the legal authority to transfer title through a Personal Representative’s Deed.

Once all debts and taxes are paid, the court authorizes the personal representative to transfer ownership to the heirs named in the will or, if there is no will, to the heirs under state law.

In both states, this transfer is recorded in the county where the real estate is located. This process provides clear title and ensures that the new owners have the legal right to sell, occupy, or mortgage the property in the future.

Homestead Rights: What Surviving Spouses Need to Know

Both Kansas and Missouri recognize homestead rights, which provide protection for a surviving spouse (and sometimes minor children) to remain in the family home.

In Kansas, the homestead exemption protects up to 160 acres of rural land or one acre of urban land from forced sale for debts (with some exceptions). Importantly, surviving spouses may have occupancy rights regardless of what the will says, which can delay the sale or transfer of property in probate.

In Missouri, the surviving spouse has the right to claim a homestead allowance and can also assert rights to remain in the marital residence under elective share rules if disinherited or undercompensated in the will.

Homestead laws can complicate real estate distribution during probate, especially when multiple heirs are involved or when the deceased's wishes conflict with the surviving spouse’s rights. It's important to account for these rights in the estate planning process.

Common Probate Challenges with Real Estate

Several issues commonly arise when real estate goes through probate:

• Title Issues: If the property has not been properly maintained (e.g., missing deeds, outstanding liens), clearing title can delay probate.
• Out-of-State Property: If the decedent owned real estate in another state, ancillary probate may be required in that state as well, adding cost and complexity.
• Multiple Heirs: Disputes often arise when multiple heirs inherit real estate. One heir may want to sell the property, while others wish to keep it. In such cases, court intervention or partition lawsuits may become necessary.
• Forced Sales: If the estate lacks sufficient liquid assets to pay debts, the court may order the sale of real estate to satisfy creditors, even if the will directed the property to a specific heir.

Avoiding Probate for Real Estate

There are several ways to keep real estate out of probate in Kansas and Missouri:

• Joint Tenancy with Right of Survivorship: If two or more people own property jointly, the surviving owner(s) automatically receive the deceased's interest without probate.
• Transfer-on-Death (TOD) or Beneficiary Deeds: Both Kansas and Missouri allow property owners to file a TOD deed that names a beneficiary. Upon death, the property transfers directly to the named person, bypassing probate.
• Revocable Living Trusts: One of the most effective tools, a trust allows you to transfer ownership of real estate to the trust during your lifetime. Upon death, the successor trustee can distribute the property according to your wishes without court involvement.

Conclusion

Real estate is often the most valuable asset in an estate and one of the most complex to transfer after death. In Kansas and Missouri, probate plays a central role in determining who gets title, how debts are settled, and whether surviving spouses or other heirs have legal claims to the property.

Understanding how probate affects real estate, and using planning tools like beneficiary deeds and trusts, can save your loved ones time, money, and potential legal battles. If you or a loved one owns property in either state, it’s wise to work with an estate planning attorney to ensure your property passes smoothly and according to your wishes.