Intro: The Probate Process
· Probate and Non-Probate Property
o Probate Property – passes under decedent’s will or by intestacy
o Nonprobate property – passes under an instrument other then a will
– Ex: 1) joint tenancy property real and personal 2) life insurance 3) K’s w/ payable on death provisions 4) living inter vivos trusts 5) life estate and remainder arrangements.
– Distribution doesn’t involve a ct proceeding.
– Initiated by filing a petition for probate (if will) or petition for administration (if intestate)
– Ct appts a personal rep: executor if will or administrator if intestate
– Once proceeding is initiated, notice must be given to devisees and creditors
– Duties or the personal rep: 2) Inventory and collect assets of decedent 2) manage and maintain assets of estate during probate 3) receive, pay and settle claims of the estate 4) clear title to assets 5) distribute remaining assets to proper parties.
o 3 functions
– 1) provides evidence of transfer of title to new owners 2) protects creditors by assuring pmt of debts, but if creditor fails to bring a claim – the claim is barred 3) distributes the decedent’s property to those intended after paying creditors
· Administration of Probate Estate
o Initiation of Probate Process
– Initiated by an interested party (1 w/ pecuniary interest)
– Interested party files a petition for administration or petition for probate
– Ct appts a personal rep and letters are issued and notice is given to interested parties
– Personal rep files a hearing for accounting and court dismisses the personal rep.
o 3 Types of Probate Process
– Formal: See above
– Simplified: Same as above, but ct doesn’t oversee the process.
– Informal: petition is filed stating how assets are to be distributed. Ct orders how assets will be distributed. PR follows ct order and is discharged when done.
o Statute of Limitations
– Pet for administration is subject to a SoL. If not filed on time the will is invalid. In KS – 6 mo after death of testator – exception: fraud, concealment of will. UPC § 3-108 = 3 years after date of death.
o Non-Claim Statutes
– Lays out the time in which a creditor must state his claim or be barred
– Normally triggered by notice from the PR
– In KS you m
but no issue.
o (3) – SS gets first $150k and ½ if all of decedents surviving decedents are also decedents of surviving spouse and surviving spouse has kids from prior marriage.
o (4) – SS gets first $100k + ½ if decedent has kids from prior marriage
– If decedent survived by spouse and issue – spouse gets ½ issue get ½
– If D survived by spouse and no issue = spouse get 100%
– If D survived by issue and no spouse = issue gets 100%
· Simultaneous Death
o You must survive the decedent to take by intestate succession
– So if daughter predeceases mom, daughter gets 0, and daughter’s hubby gets 0.
– Unif. Sim. Death Act – presumes: heir predeceases the ancestor
× Exception – unless there is evidence to the contrary
– New USDA – requires beneficiary to survive the donor by 120hrs to take as a beneficiary. Must be proved by clear and convincing evidence.
× Same as UPC §2-104, -705.