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Estates and Trusts
University of Kansas School of Law
DeLaTorre, Phillip E.

Estates and Trusts

Probate Property
– property that is passed down by will or intestacy
– probate is the default (if it is not non-probate property)

Nonprobate: property passed out by instrument other than a will – most common. Does not require court proceeding (decedent has to take affirmative steps for the property to qualify as non-probate).
1. Joint Tenancy – survivorship after death certificate is produced, so nothing passes upon the death of a joint tenant.
2. Life Insurance – Paid directly to beneficiary without probate process
3. Contracts with payable-on-death provisions – ex: investment plans IRAs
4. Life estates and remainders: remainder avoids probate
5. Interests in Trust – trustee holds the property and gives to beneficiaries in accordance with the trust agreement

Probate Procedure: background information necessary for estate planning

A. Opening Probate

– Functions:
· provides an orderly transfer of title
· provides evidence of property transfer
· protects creditors by requiring payment of debts
· and carries out decedent’s intentions
– Primary jurisdiction: will should be probated in jurisdiction where decedent died
– Ancillary jurisdiction: If property is in another jurisdiction (ensures local creditors will get paid)
– Letters of Administration: probate court authorizes person to administer the estate
– Uniform Probate Code (UPC) – statutes regulating probate procedures
· Informal probate: no notice to interested parties
· Formal probate: judicial determination after notice to interested parties
– will has to be probated within 3 years of death – otherwise, intestate is assumed
– Time for contest: a party can file a claim challenging the will, but it has to be done within a specified amount of time after probate is opened – it’s based on statute
– Creditors of decedent: statutes require creditors to file claims within a period of time

B. Supervising Representative’s Actions
– Courts supervise administration of estates – time consuming; gr

process is available only if:
– dollar value of estate has to be less than certain amount
– estate has to be solvent – more assets than creditors

Time limit to file petition – statute of limitations KSA 59-617 (6 months from death)

Non-claim statutes – time limit of creditor establishing claim (KSA- 4 months after notice is given to creditors)

Contesting a will: challenging validity of will; attempting to prevent a will from probate based on invalid bc wasn’t executed properly, or will revoked by intestate, or superseded by a later will
– can only be challenged by someone with a direct pecuniary interest in estate

When is probate really necessary? Its expensive, invades property
– Yes, when there are creditors.
Its best way to get formal transfer of property: home, car, stocks/bonds