Brenner: A Kansas Probate Loophole

The Kansas Court of Appeals decided the Estate of Brenner last Friday. Brenner comes to us from the fine town of Goodland, in western Kansas (Sherman County, near Colorado on I-70). Mrs Brenner died and her daughter asked the Court for letters of administration more than 6 months after her mother’s death (red flag). Mrs Brenner’s obituary tells the charming story of her life; unfortunately, after her death, conflict erupted.

Earlene F. Brenner died January 26, 2014. About 7 months later, on August 18, 2014, her daughter, Beverly Goodman, asked the court to open her mother’s estate and grant Ms Goodman letters of administration. The trial court (via Judge Scott Showalter) said “no,” refusing to open Brenner’s estate or grant Goodman letters. Brenner’s children disagreed if her estate had any probate assets – Brenner had some Texas real estate and bank accounts that passed outside probate.

Writing for the Court of Appeals (the daughter won, 2-1), Judge Kim Schroeder reversed the trial court, and granted letters of administration (K.S.A. 59-2232), as he found the “petition for administration [wa]s timely filed” (Slip, 10). The Court distinguished opening an estate for administration (no deadline) from filing a creditor claim (6 month deadline, K.S.A. 59-2239), and declared that “[a]n action to marshal assets does not invoke the non claim statute [59-2239]” (Slip, 9). The Court says “no harm [no foul]” – when Brenner’s estate is opened, if assets exist, the estate can administer them; if the estate’s empty, “the estate can be closed” (Slip, 10).

Judge Joseph Pierron was the lone dissenter, arguing that letters of administration fall under the 6 month deadline, like filing a will or creditor claims (Slip, 11), and observing that “the issuance of letters of administration is rarely a challenged issue” (Slip, 18). In addition to the daughter missing the 6 month deadline, Judge Pierron argued there were no probate assets, so no need to open a Kansas estate (Slip, 17).

Brenner‘s story may yet have another chapter. Goodman’s losing siblings in Brenner could ask the Court (1) to rehear or modify the case (Rule 7.05), (2) to hear the case en banc (Rule 7.02(a)(1), (b)), or (3) petition for review with the Kansas Supreme Court (Rule 8.03(e)(2)). And in 2016, the Kansas legislature could clarify the probate deadline, to check or balance the growing trend of courts freely reading the statutes of limitation (an arc going back to at least Tracy (2006)).

Bottom line: Kansas’ 6 month filing deadline only applies to wills and creditor claims, not letters of (intestate) administration. If someone dies without a will, their estate can be opened for administration after 6 months, and the estate opening window looks indefinite, a classic carte blanche loophole (“we can find no statutory bar to this action,” Slip, 10). Brenner adds an arrow to our quiver, expanding the attorney’s probate repertoire. And Brenner is yet another reason to encourage clients to do estate planning during their lives, as the Court’s decision arguably undermines probate’s finality (Slip, 11-12).

More food for thought for the bar: could Brenner affect the timing for filing (1) a small estate affidavit (K.S.A. 59-1507b) or (2) a determination of descent (K.S.A. 59-2250)? If letters of administration can be granted more than 6 months after death (even years later under Brenner‘s logic), that could delay the small estate affidavit or determination of descent, since those probate routes assume it’s too late for letters of administration (or that letters won’t be sought or granted) (Slip, 10, 17-18).

My law firmJohnson Law KC LLC, is experienced counseling clients on probate, estate planning, and trust administration. Call (913.707.9220) or email me ( to schedule a free, convenient consultation.

(c) 2015, Stephen M. Johnson, Esq.