ESTATES AND TRUSTS OUTLINE FALL 2006
I. The Probate Process
A. Intestate- without a will; intestate succession- by statute
B. Functions of probate:
1. Provides official documentation of transfer of title to whoever is the new owner – see three functions on page 34 near the top
2. Distribute the assets
3. Settle creditors claims
C. probate property- assets disposed of either by the testator’s will or by intestate succession
D. nonprobate property- assets that pass through some sort of intervivos arrangement not through a will or through intestate succession
1. Examples: life insurance; joint tenancy (goes to the survivor); contracts with pay on death provisions- i.e. pension plans and bank accounts; inter vivos trust arrangements; life estate remainder arrangement
E. Common law terms
1. If there is a will, decedent is the testator; succession process is called a devise if it is land; personal property is a bequest; and money is a legacy
2. Recipient: devisee for land, legatee for personal property and cash
3. If no will- decedent is the intestate- succession is a descent or inheritance if it is land, etc. See handout
4. Why different terminology? Differences historically in treatment of land v. personalty
F. Probate process:
1. File a petition: petition for probate if there is a will; if no will, petition for administration
2. Court appoints a personal representative- known as either the executor (if will) or the administrator (if no will) of the estate
a. letters testamentary or of administration- what PR receives from the court that allows the PR to start acting as the PR of the estate
3. Throughout probate process, different decisions are made by the probate court, and at each of these points, typically a hearing is held and notice must be provided to potential devisees, heirs, creditors
4. Duties of a PR:
a. inventory and collect decedent’s assets
b. manage the assets during the administration process (preserve them or get rid of them if they are something that might waste; maybe liquidate them)
c. Take care of the creditors
d. Clear any titles
e. Distribute the remaining assets to those that are entitled to receive
5. PR files a petition for final settlement and approval of accounts
6. Notice is given to all of the parties again; PR goes to court and accounts for what he or she has done; court approves it and discharges the PR
G. Types of Probate Procedures
1. Formal probate process- initiated by filing of petition by an interested party (devisee or creditor or executor named under the will or by a potential intestate heir)
2. Kansas version- 59-2219; interested party files a petition for administration- has to recite the names and addresses of the intestate heirs; the probable value of the assets of the estate; KSA 59-2220- probate of a will- has to be accompanied by the will; identify by name and address the people who are going to take; also the drafter of the will
3. Streamlined processes are available in some states (inc. KS):
a. Advantages: Simpler, easier, quicker, less judicial involvement; not as many hearings or as much notice; less expensive
b. 59-3201-3206 simplified administration- file a petition:
1) List of heirs, devisees
2) Inventory of assets
3) List of debts owed
4) Statement of a list of funds
5) Proposed final order
à PR authorized generally w/o court approval to:
1) pay claims
2) sell property
3) distribute assets
à Closing same as formal probate
c. 3301-3306: informal administration- file a petition:
1) how assets should be distributed
2) Initial hearing to decide if informal probate is appropriate and family allowance; if allowed PR is on their own.
3) Must petition for informal probate
d. Key- type of process is typically not available unless certain things are true:
1). Only if situation satisfies certain requirements: I.e. $ value of the estate has to be less than a certain amount;
2). estate has to be solvent; and
3). cannot do this process if testator was mentally incompetent
H. Time limits
1. KS- 6 months following the death of the testator; exception- if someone conceals the existence of a will
2. UPC 3-108: 3 years
3. Nonclaim statutes- a time limit within which you have to assert your claim as a creditor, and if you don’t do it, your claim is forever barred
a. KS 2239- 4 months following the official notice to creditors
I. Contesting a will
1. attempting to prevent a will from being admitted to probate on the basis that it is not valid because it wasn’t properly executed or signed; or was properly executed and signed, but later it was revoked by the testator before he or she died; or maybe superseded by a later will
2. challenging the val
into the shoes of the prior generation and take whatever that immediate ancestor would have taken had he or she survived the decedent
H. Formula that is applied, at any generational level
1. Number of survivors at that particular level
2. Add number of nonsurvivors who leave themselves surviving issue
I. Two questions to ask to distinguish:
1. Where do we apply that formula (what generational level?)
2. Which generational levels take per capita, and which take per
stirpes?
J. Three main systems:
1. English per stirpes- always apply that formula at the child level no matter what- even if there are no survivors at that level; only survivors at that level take per capita, all generations after that level take per stirpes
a. English per stirpes method is very prior generation conscious- emphasis on vertical family lines
2. Modern per stirpes- (Majority approach in the US)- formula applied at the first generational level that has a survivor, so if all children had been wiped out but there are grandchildren, so grandchildren would take per capita
a. Modern system is a hybrid- not generation conscious at the first level, but deeper generations down become very prior generation conscious
3. UPC 2-106: apply at first generational level with a survivor, and then each generational level per capita
a. UPC is not at all prior generation conscious- all horizontal and not vertical; family size is a non-factor
K. Negative Disinheritance- express statement in will disinheriting a child.
1. Old Rule
a. To disinherit, it is also necessary that the entire estate be devised to other persons.
b. A testator cannot alter the statutory intestate distribution scheme without giving the property to others.
2. New Rule
a. UPC §2-101(b) authorizes a negative will.
b. Barred heir is treated as if he disclaimed his intestate share
c. He is treated as having predeceased the intestate.
L. Shares of Ancestors and Collaterals
1. Definitions
