Estates & Trusts Outline
Probate v. Nonprobate Property
Probate Property: property that passes under the decedent’s will or by intestacy.
Nonprobate Property: property passing under an inter vivos transaction:
Joint tenancy property (under right of survivorship)
POD accounts (i.e., pension plans, IRAs, etc)
Interests in living trust
Life estate remainder
Functions of Probate
Provides evidence of transfer of title to the new owners
Protects creditors by requiring payment of debts
Distributes decedent’s property to those intended after the creditors are paid.
File Petition for Probate (if there is a will), or Petition for Administration (no will)
Who can file: an interested party (e.g. executor, devisee, creditor, intestate heir)
Personal Representative (PR) is appointed by the court:
Executor (if there is a will)
Administrator (no will)
Authorization of the PR from the Probate Court:
letters of testamentary (will)
letters of administration (no will)
authorized for various duties by the court, but
activities must be approved by probate court in a hearing
Inventory & gather assets of decedent
Manage assets during administration until final distribution
Pay creditors, including paying taxes
Distribute assets to devisees
Notice must be given to Heirs, Devisees and Creditors before a hearing
Closing the Estate:
Final decree made by the court; binding except for the usual appeals process
UPC SOL: No probate proceeding, formal or informal, may be initiated more than 3 years after the date of death. Common law permits a will to be probated at any time. [KS has 6 mos. SOL, KSA 59-617].
Contesting a will probate: claim by someone w/ direct interest that will was not properly executed, was revoked, or superceded by a later will.
Barring creditors of the decedent: Every state has one of two types of “nonclaim statutes:”
(1) bars claims not filed w/I short period after probate (2-6 mos.) [KSA 59-2239 gives 4 mos.], or
(2) bars claims not filed w/I longer period after death, whether or not probate begun (1-5 yrs.)
Types of Probate Procedures
Formal/Personal Probate Process
File petition for administration or intestacy containing [KSA 59-2219] Name and address of heirs, devisees
PR is appointed and begins responsibilities
PR actions must be approved
iii. cost of administration
Intestate Succession: distribution of assets of a person who dies without a will.
Surviving Spouse Share:
Typically surviving spouse gets 100% of assets if no other surviving issue
Typically, if there are surviving issue:
S: ½ I: ½ OR
UPC: If all decedent’s issue are spouse’s issue, spouse gets 100%
§2-102: Spouse’s take is lowered if living parents of the decedent, living issue of the spouse that are not issue of the decedent, or if there are surviving issue that are issue of the decedent but not issue of the spouse.
Shares of Descendants: Direct Lineal
· After spouses share is set aside children and issue of deceased children take the remainder of the property to the exclusion of everyone else.
Representation: child’s descendant represent dead child and divide the child’s share among themselves.
Two questions addressed by each system: