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Contesting a will probate: claim by someone w/ direct interest that will was not properly executed, was revoked, or superceded by a later will.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] PR is appointed and begins responsibilities
PR actions must be approved at hearings after notice is given to all interested parties.
PR files a petition for Final Settlement & Approval of Accounts.
PR is discharged and the estate is closed out
File a petition containing: [KSA 59-3201] List of heirs, devisees, Inventory of assets, List of debts owed, Statement of a list of funds, Proposed final order
PR authorized generally w/o court approval and hearings requiring notice to:
pay claims, sell property, distribute assets
Closing: Like formal probate
i. Final accounting
ii. Notice to all parties
iii. Chance for a party to make an objection
iv. Decree of final statement
File a petition containing: [KSA 59-3301] how assets should be distributed
Court has initial hearing to decide if informal probate is appropriate and family allowance; if allowed PR is on their own.
One is not necessarily entitled to informal probate, but must petition for
king of collaterals:
Table of Consanguinity p. 79
First ancestor or collateral in ranking takes per capita and all else take per stirpes-with exceptions.
· Time of Death is important:
If child predeceases its parent, child’s spouse has no claim to the parent’s estate
If child dies after parent, child’s spouse has a claim to parent’s estate
Other situations for inheritance of descendants (direct linneals)
· Uniform Simultaneous Death Act: Beneficiary is deemed to have predeceased
Rebuttable Presumption: If you can tell who died first then statute does not apply.
· Posthumous Children: If child is in gestation when benefactor dies, it is deemed to be alive for purposes of inheritance
Rebuttable Presumption: If born 280 days after death, the presumption is it’s not the decedent’s child and it is the alleged child’s burden to prove otherwise.
O devises “to my children who are alive when I die.” O dies and leaves 2 children, A & B, and a child yet unborn, C. The burden is upon C to prove he is a child of O if more than 280 days.
· Disinheritance: In most states,it is not enough to say in the will that decedent is leaving an heir nothing. One must say, “I leave X nothing . . . I leave entire estate to A, B, & C.”
Reason: If X was only heir of decedent and decedent left X nothing and didn’t give it to someone else, X would get it from the intestate anyway. (majority view)