Hittin' the Bricks with Kathleen

Secrets of Probate: Hiding in Plain Sight

• Kathleen Brandt • Episode 2552

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We unpack how end of life records like probate, wills and testaments can be the undoing of even the most stubborn brickwall.

Stacey Janssen and Jeremy Keel of Janssen Estate Probate & Elder Law demystify the legal jargon of wills, probate and guardian records.

Do you have a genealogical question for Kathleen? Drop us a line at hitting the bricks at gmail.com and let us know.

Be sure to bookmark linktr.ee/hittinthebricks for your one stop access to Kathleen Brandt, the host of Hittin' the Bricks with Kathleen. And, visit us on YouTube: Off the Wall with Kathleen John and Chewey video recorded specials.

Hittin' the Bricks is produced through the not-for-profit, 501c3 TracingAncestors.org.

John:

Ladies and gentlemen from the depths of Flyover Country in the Heartland of America, the Kansas City on the other side of the mighty Moe, welcome to Hittin' the Bricks with Kathleen, the Do-It-Yourself Genealogy podcast with your questions and her answers. I am John, your humble hubby host. And today we'll be talking about wills, testaments, and probates. Oh my. There's a lot to cover, so let's start hitting the bricks. That's exactly what we're doing. Now, and if you saw that live stream, don't panic. We're not live streaming. At least I don't think we are. This might be new. All of a sudden we're going out to.

Kathleen:

That's not funny, John.

John:

I might have pressed the wrong button, and so now. We are here, we're talking with Stacey Janssen and Jeremy Keel of Janssen Estate Probate and Elder Law. And Stacey and Jeremy have a lot of really interesting information. What we're going to talk about today is probates and trusts, wills and testaments. What's the matter, Kathleen? Your fingers up. I'm already in trouble.

Kathleen:

No, I want to know more about Stacey and Jeremy before we get into the meeting. Absolutely. So, can Stacey, Jeremy, can you tell us about your law firm, who you are, what you've been doing? I'm I'm glad to, glad to.

Stacey:

I'm originally from Celina, Kansas. Uh went to KU and graduated uh from law school in 1988, moved to Kansas City. Uh, my first job was doing the Senior Citizen Law Project for Kansas Legal Services. And I was hooked, just hooked on older people, families, how do we, how do we plan for the future? While I was there, I probably did a million wills and powers of attorney. After being there about 10 years, I saw other people who who were in practice doing what I was doing. And it's like, I can do that. I can do that better than they can. And it turns out I was right. Um I've had my own practice. I've been with a couple firms, but back to having my own practice again. And in fact, we met with a lovely family this morning, and uh, it's uh just a real joy to get to know families, right? To talk about their particular issues and help them transition not only their wealth but their values, right?

Kathleen:

To the next generation. I love the way you said that. And I like that connection of working with the elderly and the elder law. That's wonderful. And what about you, Jeremy?

Jeremy:

So I have a little bit less experience than Stacey. Um, I've only been doing this. I joined her firm about two and a half years ago. So before that, I had some experience in family law, and then before that, I did civil defense. I worked for Geico. And so I slowly was transitioning closer and closer to just doing this type of stuff, getting to family law, and then now here, and I like it much more than anything else that I've done before. So I enjoy working with people, their families, kind of like what Stacey was saying, but this is much less drama and people fighting generally. Generally straight up. Family strike.

Speaker 04:

Yeah.

John:

Yeah. We should probably disclose that we met Stacey and Jeremy because we actually asked them to help us with our trust and make some sense of it. So this are we'll trust. Yeah, so full disclosure on that. Truthfully, they handled us so readily and were so great about everything that we were like, hey, you know, we have some listeners that would probably really benefit from hearing from you two.

Stacey:

Well, thank you. Thank you. I found you guys to be delightful as well.

John:

So listeners, be be ready to be delighted now. I remember my parents were older, and so my dad always had a comment about issues with probate. And so it was this big bugaboo word around wills. And what is it? And why is everybody frightened of it?

Stacey:

Right. And maybe you should be, maybe you shouldn't. So probate, in its most basic sense, is the process of taking assets that were owned by someone who's now dead and distributing them to living people. If we have a piece of property, bank account, whatever, and it says on the title to that property to whom it goes when the owner dies, joint tenancy, pay on death, transfer on death, part of a trust, their instructions about to whom it goes, then that does not go through probate. It is only the assets that are that exist in the name of a person who's now no longer alive. And then we transfer good title to living people. It's had more complicated than that, but that's the overall goal.

Kathleen:

So historically, Stacey, has that always been the case? Because John and I have that trust. Right. I don't see the word trust a lot in historical records. Is there a reason?

Stacey:

Yes. So trusts are really a 21st, a 20th century or late 20th century uh vehicle created as a probate avoidance option. So if you're researching your family in the 1760s, right, you're you're not gonna find a trust. You're gonna find a probate. As you go forward in time, the likelihood that there would be a trust or other non-probate transfers, which then either means that we don't need probate or that probate does not include all of the assets that the family had, uh, becomes more likely that that's the case.

Kathleen:

So I have one more question, John. Go ahead with the question. So this is about Kathleen making sure she understands. In the past, in old historical records, we see a lot of wheels and we see probates, but not as many as we see wills. All wills are not probated, you're saying, because we might not have needed to.

Stacey:

Okay, so let's suppose we have a husband and wife, right? And they own property together. Typically they own it jointly. In Missouri, we might have something called tenancy by the entireties. In Kansas, we have joint tenancy with rights of survivorship. And so when the first spouse dies, and she may have a will, but we don't need the will to transfer title. So we don't probate the will and there's no probate. If on the death of the second spouse, that second owner, if that person had set up joint tenancy or other ways to convey the assets, we would not have probated that will either. And you also may find that particularly in smaller communities or earlier in the American jurisprudence, that just having a will was enough. We didn't need a formal probate process like we have now. So you might only find that will filed with the clerk and no other documents. Okay.

John:

Let's say the the spouse dies and there is no direction given who the property should go to. And so we end up in probate. And and what happens with that? Who decides what? Where is the fantasy land of probate where they send all the paperwork?

Stacey:

It be it begins the very first day when we which petition to open. I mean, probate is an intense amount of paperwork. So you begin with that initial petition. Now, if there was no will, right, then property is distributed by the laws of that particular state. Those are called intestacy laws. And that means someone died without a will. So the state has a plan to distribute your assets.

John:

Interesting.

Stacey:

So, Jeremy, do you want to talk about the intestacy? So, example, if if you die without a spouse, where do your assets go?

Jeremy:

So it depends on which side of the state line you're on for us around here, anyways. Um in Missouri, they would go if you have children. Well, Missouri and Kansas both, if you have children or grandchildren or descendants, then it goes to them. If there are no children of the deceased person, then it might go to siblings, if you have surviving siblings and parents, or just to parents, depending on which side of the state line. Or further out beyond that. Or even further out.

Stacey:

So you could go. So if you had no children, Jeremy, correct me if I have this right wrong. In Kansas, you would go up to the parents and then go out to siblings.

Jeremy:

Yeah.

Stacey:

And then Missouri's different.

Jeremy:

I think Missouri, it's 50% siblings, 50% parents.

Stacey:

Okay, so it's different. So I had a case years ago uh on the Kansas side, but we had they were half siblings, and we thought they had the same father, different mothers. We thought that the mother's line had, and this person had no children. I represented one of his brothers who was hoping to inherit everything. We we thought that the mother's line had ended. Turns out, actually, no. She had had other children and had been cut off from her family. Interestingly, she was African American and had been passing. And so she didn't want anyone to know about her other family. We were notified about the other family because an air search firm tracked down this estate and tracked down these people. Kind of the sad part about it is this man's assets ended up going to very distant cousins who had never met him.

Kathleen:

Because it went to the African American site.

Stacey:

It ended up going 50 50-50. Half to his siblings from his father, and then half to the mother's other children.

Kathleen:

So this is a very interesting side point. Go ahead, John.

John:

That opens up a really kind of fun research uh issue, and something that might I know I didn't come in here considering the issues of somebody's passing and the legal ramifications of distribution of uh wealth.

Stacey:

Right, right. And or or any uh for any other reason, right, that they might be cut off from their blood family.

Speaker 04:

Right.

Stacey:

Um it's harder to do, I think it's harder to be in this age, right, of being able to uh you know, you have everybody's social security number at birth, and it's much harder to be anonymous. But roll back the clock 50 years, maybe as little as 50 years ago, you could probably assume a new identity and be cut off completely from your blood family.

John:

Wow. Yeah.

Kathleen:

So I'm gonna take this to what we call forensic genealogy, so which that's one of the fields that I do, and that is retracing people like that, where they've been cut off. Recently we did one, I did a Civil War uh case, and we're going to Iowa for it. I accepted a flag in the name of a Civil War veteran. We did not find any descendants who were uh really involved with him or wanted anything to do with it. Later, we found out through the research that his brothers weren't Confederate, he was Union. So now the Confederate side is all we knew about, but all his obituary and his will, it clearly only names his sisters, not his brothers. So one of the things we find in that are those rifts, those who have been who passed. Sometimes we find adoptions. What about those kind of cases? Do you anything on that?

Stacey:

I have a great adoption story. So adoptions are very interesting because the law in Kansas and Missouri are a great example. So I had been appointed as an administrator in an estate because we had these, this pretty young-ish woman had died, and we thought she had no children, and she had sisters who hated each other, and they just fought like dogs. We were dividing up the Christmas ornaments. When at the like the 11th hour of the estate, I get contacted by a woman saying, I think the decedent put me up for adoption. I know she's my mom. She sends me all this stuff. Indeed, the decedent had put her up for adoption. The interesting part for me was that the child was put up for adoption in Missouri. The adoption was completed in Missouri. And in Missouri, when there is an adoption, it cuts off inheritance rights. On the Kansas side, so so when she had the baby, she gave up, lived in Missouri, gave up the baby. She died in Kansas. She died a resident of the state of Kansas. And in the state of Kansas, children you put up for adoption can inherit from you. Wow.

Jeremy:

And their adoptive parents, their natural parents and their adoptive parents, both.

Stacey:

So for me, the real joy was that I got to say to the warring sisters, you get nothing, because everything went to this child she had put up for adoption.

Kathleen:

Because on the hierarchy, the child is higher than a sibling in laws of intestacy.

Jeremy:

And in Kansas, though, isn't it correct that the daughter could adopt from her mother who put her up for adoption, but had the daughter predeceased the biological mother, the biological mother could not inherit from the daughter.

Stacey:

But children can't. Yeah. Only downstream, not upstream. And each state can be different, which is a reason to do a last will and testament. If you have given a child up for adoption or you have been adopted, there's a reason to do a last will and testament. Because if you guys go look at yours, one of the first things we do is we say, I am married and I have the following children.

Kathleen:

This is absolutely fascinating. Have you guys thought about doing a podcast?

Jeremy:

We would get too distracted.

John:

In between all the other stuff you're doing, right?

Kathleen:

So historically, I do find a lot about our biological parents in paperwork. I I have uh one case that was right here in Kansas City, Missouri area. And it was the same kind of information. In the mother's will, we found out who everyone was. Of course, I had to use DNA to find the father's information. But in this, I'm hoping the listeners are hearing you say that this is state specific. That is not the same in every state. And our our, of course, our listeners are from everywhere. Um, what does the paperwork look like?

Stacey:

Assuming that you have gone to a lawyer who's going to ask you the questions, right? Because you need to ask, have you ever given up a child for adoption? Um, in that last will and testament, there should be information about the marital status of the testator, that's the person who makes the will, as well as their children. Because those are the primary places where money goes when somebody dies. So those are the heirs at law. The heirs, right? Your spouse and your children are your primary heirs at law. And say, for example, you want to disinherit someone, right?

John:

That was my next question. You can't disinherit me. It's too late.

Stacey:

Actually, actually, it's very difficult in both Kansas and Missouri to completely disinherit your spouse. But that's another that's a story maybe for you all day.

John:

But I'll give the bad news to Chewy, though.

Jeremy:

But Kathleen, if someone wanted to disinherit a child, they can do that. And then we would specifically put in their last one testament. I have these children, but for the sake of this, I'm disinheriting this person. Maybe put a reason, maybe don't, and say, for purposes of my last one testament, it is to be considered that they have predeceased me or something along those lines.

John:

If they're just not there in the will, there's three brothers, and they only mention two, does that naturally exclude that third, or does it open up a big can of worms for a law firm?

Stacey:

In my opinion, it opens up a big can of worms, right? So to do a will, one of the basic things you need to be able to establish, or the lawyer is looking for, is does the testator know the objects of their bounty, which is typically their family. So if a member of the family is missing, I might have some questions about the capacity of the testator and the quality of the lawyer.

John:

So leaving somebody out of a will is definitely not the way to if you're going to disinherit them, then disinherited would be the thing you go through there.

Stacey:

Because if you just leave them out, it opens the door to have they lost their capacity? Did they not remember me?

Jeremy:

Oh wow.

Stacey:

Or an error by the lawyer.

Kathleen:

Right.

Jeremy:

Okay.

Kathleen:

All of a sudden I feel like I need to look at my wheel one more time. Because again, in the past, we see a lot of times where they'll say, I leave him one dollar, and that solved it. And I'm wondering if I need a sentence like that in one of in our in a wheel.

John:

Oh, you were you were worried you were worried about my family, it sounds like. Now I just put two and two together. Now I understand where we are. Okay.

Kathleen:

Well, I just didn't know exactly who I had to give a dollar to that I didn't want to have anything else.

John:

You're horrible. Okay.

Kathleen:

I I know.

John:

I go ahead, Kathleen. I I stepped on a couple of your questions.

Kathleen:

No, you no, you you answered my disowning one. That was one of my questions.

Jeremy:

Good. Were you wanting to talk about the actual probate process when you were talking about like the paperwork? Yes. Well, um, it kind of depends on again what state you're in, because even right here, it it some things are state specific. But generally speaking, it is all pre-designated, like forms that we follow. I think one thing that people get concerned about, people being the relatives not administering the estate. So someone passes away, maybe their sibling is the administrator or executor of the estate, and then there's other siblings out there or relatives that may be inheriting, and they get really concerned that this sibling in charge is going to do something wrong, but everything is highly regulated by the court. And so there's not much leeway in what's happening. The documents pretty much all look the same from case to case. It's just kind of going through the motions as far as the probate process. It can be time-consuming and expensive, which is why it's kind of a taboo thing. But as far as the paperwork and the process, it's kind of uniform.

John:

Where does this kind of law come from that now we have kind of a pathway to deal from state to state with inheritancy and wills and probates and things like that?

Stacey:

Most of the law that we have in this country we've inherited from England. So it came over as common law. America has taken a slightly different turn in terms of inheritance. In in England, the system primarily was primogenitor, right? Where the assets went to the oldest son, who was then responsible for providing for the rest of the family. United States has taken a very different turn in that priority is given in most states to the spouse and then and the children. Kansas and Missouri both have, I talked about how it's difficult to disinherit your spouse. And we also have provisions in both states to take care of minor children, even to the exclusion of creditors who might have claims. And each state can be different, right? Because each state, you think of the East Coast, you would have perhaps a different arrangement because they had closer ties to Europe, as opposed to as you move further west. And even in the southwest, right, you would have ties perhaps to Spain and different traditions.

Kathleen:

Oh, that makes sense. I didn't think about the territorial influence on probates. I mean, in law in general, yes. Right.

Stacey:

Well, because governments are obsessed with the passing of wealth. It's it's essential for a stable society. Probate itself is essential really for a stable society. We need to be able to pass wealth in an orderly way to living people. And without that, you have chaos.

Kathleen:

So as I mentioned earlier, I don't always see a lot of probate. I see other information with wills also. So to protect daughters or enslave persons, is that still a practice to protect people in that way?

Stacey:

Absolutely. So to protect minors, right? We create, uh, we can create a testamentary trust for a minor so we don't have to do a guardianship or conservatorship. Particularly in people who with people who are not married to one another anymore, right? If the one parent were to die, we don't necessarily want the other parent controlling the money. So we may have it set up with a third party holding the money for the benefit of a minor. Same for disabled people, right? We want to be careful about how disabled people inherit money because that can disqualify them for public benefits. So that's another form of protection. We don't have to provide special protection for our daughters anymore because yay, we can own money and property in our own right. Yes.

John:

What was it, 1974, I think? Yeah, I was in high school. Thanks.

Stacey:

So we I mean, not wood, we still can't.

Kathleen:

Yes, exactly. So on this, what you just said were some vocabulary words I'd like to uh go over. Guardianship, conservatorship, and you mentioned another one, but I don't remember what it was. Testimony trust.

Stacey:

So uh let's start with guardianship and conservatorship. Guardianship is a court, also through probate, is a court-created relationship for um minors whose parents perhaps are not living or are not suitable, are not able to provide care for them. Um it gives authority over the person in providing care. So for that minor or for a person who is disabled and can't make their own decisions. Conservatorship in Kansas and Missouri, these terms also are different state to state. Conservatorship is authority over money. So in Kansas and Missouri, a parent for a minor can only hold up to $10,000. So if there is a death and money comes to a minor and it's more than $10,000, we'll need a conservatorship. Conservatorships are great. They're created by the court. Court supervises the money, makes sure it's held there. Until that person turns 18, you may not want to do a conservatorship because the young person will get all their money at age 18. Instead, we might, through your will, create a trust that holds that money for that child's benefit until 25, 30, whatever you might think is appropriate.

Kathleen:

In the past, we see probates and wills. We see the guardianship records separate than the others. Is that still a practice? Yes.

Stacey:

So a will is called a decedence estate. Guardianships and conservatorships are also generally in probate, but they do not involve dead people. They involve living people. So they're different.

Kathleen:

Got it. So that is why they keep them separate, and that is also why I can't get them from certain states because they in like Missouri, you have to fight to figure out how to get them.

Stacey:

Because it it is private, right? That that information is going to be locked down because it involves a minor or it involves a disabled person. I mean, likewise, adoption records are gonna be sealed.

Kathleen:

In these records, which we used to be able to get, like I have one man whose wife had to be institutionalized, and she really did need to be institutionalized. It wasn't because she was going through the change of life. He divorced her, but in his agreement with the family, he will always take care of her. That's how we found out where she was and all of the information we needed to know about her. We didn't know anything about this woman. We only knew about this other wife, second wife. Second wife.

John:

What document was that it?

Kathleen:

And it was in his will that you must continue taking care of this woman. And he had children by them we didn't know. But I can't get to those records if it was common day in every state. Some states I can, but on the closed states I can't. What do our descendants do about that? Like they can't learn these kind of things.

Stacey:

If the person was deceased, right? Or they're now an adult, uh, if they're deceased, and probably you're gonna be dealing with people who are deceased, I suppose hypothetically you could petition the court to unseal the records.

Jeremy:

In some courthouses, I think if you go to the courthouse, you can get records and uh where they may not be available online, but if you're in person, you can get things. That's how it is in Missouri.

Kathleen:

And in genealogy, we're looking for the deceased people who died before us, right? I mean, there are ancestral people. Whereas in forensic, we're looking for people who are missing in action. They might be living, there might be inheritance or an inheritance case or an adoption case, but they're living people that we're working for. So we're now tracing from past forward versus from today backward.

John:

Those are the airship cases.

Kathleen:

Are my airship cases? Yes. So now do you all work with those also?

Stacey:

On occasion, right? If you have unknown airs that you can't find, right? Somebody's cut off from the family, you can hire an air search firm, and that they do, I guess what you do, they go look for them.

Kathleen:

That's one of our our arms was airship.

John:

Before we let that point pass, um then I think too, the genealogists out there, I mean the ones that hang out their shingle, that is something that they should pay attention to. Typically, when you go through the yellow pa okay, there aren't any yellow pages. Typically when you when you look up uh you know, when you look at uh law firms and you look at firms that do wills and probates that airship is something that sometimes they need, it might be one of those connections that you'd want to be if you're a forensic genealogist, some someplace to fill a gap there.

Stacey:

That would be a that would be a probably an employment opportunity.

John:

Yes.

Kathleen:

It it is, it really is. So, Jeremy, one of the things you mentioned is that you were an attorney for Geico beforehand. Did any of this apply to you?

Jeremy:

Surprisingly, there was a little bit that would overlap because we would get like a minor child who would be in an accident, and if they got over the threshold of money, they would have to have a conservatorship opened. So that's under the probate umbrella. And then once in a while, we would also do wrongful death cases or something where there is a deceased person from the car accident, and then the money would need to pass through their estate, and so a probate estate would have to be opened up.

Kathleen:

Are those records available for genealogists or for public, or are those all private?

Jeremy:

Same process, yeah. I'm on the flip side of that now, wherein before I worked for the one that was putting the money into the estate, and now I'm on the side of trying to open the estate to accept the money to send it to the living people. But it's all the same core process to it's the same core process.

Kathleen:

I've I've learned more on this one podcast than I've ever and I thank you because I'm obviously one of the listeners to my podcast. So I really learned a lot more. One of the things in general that genealogists are looking for are missing generations, of course, missing persons. Wills and trusts often tell us where someone is, who their relatives are. It might even tell us about an immigrant, you know, like where they were from and their exact town, uh where a brother lives in Germany, and so forth. So we'd never want to overlook wills and probates.

John:

Are there any unusual probate cases that told kind of a family saga?

Stacey:

There are so many. We don't have enough time.

Jeremy:

Um I simple ones are like someone we would work with who they come in, they fill out a questionnaire saying, My relative died, these are the errors, and then a simple Google search tells me that there are other errors, like your child did have siblings, or something like that, where the client doesn't tell us these things, but I can look at their obituary.

Speaker 04:

Oh wow.

Jeremy:

And that's just like a simple surface level issue that people do that, and I assume it was on purpose. I don't know. It could be that he didn't understand that all of this tier of errors need to be identified. Wow.

Kathleen:

Oh, I'm sure. I'm sure. Yes, we we all have siblings, Jeremy. We we know better.

Stacey:

And I would say that also trust and probate litigation is exploding. You know, we are in the middle of the biggest wealth transfer in the history of the world. And so people get grumpy about it, right? If, you know, why wasn't it equal? Where's my share? Just seems like there should be more money. What happened? Um, lots of cases challenging undue influence, right? Did your sister persuade your mom to disinherit you? And then questions about capacity.

John:

Wow. That's cool. Kathleen, this last question, I don't know if it works or not. If you were a genealogist, what's the first document you'd check in a probate package?

Kathleen:

For me? Yeah. For me, it would be inventory. Inventory tells me the whole community. So I love the inventory part. I've I've got to be. Okay, so wait a minute.

John:

There's a document, there's a document in a probate packet called an inventory.

Kathleen:

Yeah, because you have to liquidate everything in the historical ones. And so you can see a lot more about the whole community. And that's where I also might see where a girl went to a particular school or a son went to a private school because someone had to pay those bills. So after looking at the wheel, which isn't gonna tell me all of that, I skip like 40 pages to get to the inventory pages, which might be anything between one page and 25.

John:

She does the same thing with in in regular books that she's reading. She always jumps and reads the last 20 pages and then decides if she's gonna read it.

Kathleen:

And then I go back and read the rest of it. Yes, and read the rest of it.

Stacey:

And fill it all in. Once you're secure in knowing what the ending is, yes. Yes. I I I relate to you, Kathleen. So do they still do the inventory stuff? Jeremy started talking about the process. So we file a petition, right, alleging this person died, they have these heirs, this money. Now there may be a will that goes with that, or we're asking for the appointment of an estate and administrator, and the laws of intestacy will apply. But pretty closely after that, we file an inventory of all the assets.

John:

We want to let them get back to work. So this has been.

Stacey:

We just been there all afternoon.

John:

No, it's been really enjoyable. Jeremy Keel and Stacey Janssen of Janssen Estate Probate and Elder Law who've joined us today. And this is everything I thought it would be, to be honest with you. Thank you so much.

Stacey:

Oh no, thank you guys. I've loved it.

John:

It's nice talking to you guys. It's an absolute pleasure. Thanks. Well, congratulations, you made it to the end of another episode. Thanks so much for staying. Thanks to Stacey and Jeremy for stopping by. Thanks to Chewy Chewbacca Brandt, our part-time bedwarmer, for his unwavering lack of interest in anything we're doing. The theme song for Hittin't the Bricks was written and performed by Tony Fistknuckle and the Hot Rats. Watch for the next appearance in the dangerous kitchen of Joe's Garage. Do you have a genealogical question for Kathleen? Drop us a line at hitting the bricks at gmail.com and let us know.

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Kathleen Brandt

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John Brandt

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