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

I. PROBATE & INTESTATE SUCCESSION

PROBATE

Generally. Process that determines (1) that a will is the valid will of the decedent, or (2) that the decedent died without a will. Probate also examines claims against the estate (especially by creditors) and grants to devisees.
Three Functions of probate (p.34)(1) official documentation of transfer of title by evidence (Stock of land); (2) officially distributes decedent’s property to those who are entitled to receive it after creditors are paid; and (3) satisfies creditors in one of two ways (assures payment of debts or bars creditors’ claims after certain time has passed).
Probate property. Property disposed of either by the testator’s will or intestate succession, which is governed by its state statutes
Nonprobate property (a.k.a. “will substitutes”) (p.30)Property disposed of by some inter vivos transaction (pre-arranged) entered into by the deceased before she dies

i. Examples. Joint tenancy property (take whole if another joint tenant dies), life insurance (k), Ks with payable-on-death provisions, interests in trust, life estate remainder arrangements.

Probate process. Initiated by filing a “petition for probate” (will) or “petition for administration” (no will) in a probate court.

i. Personal representative. An executor (will) or administrator (no will) appointed by the court and authorized to act by letters testamentary (will) or letters of administration (no will).
a. Following a hearing, (depending on complexity), every interested party is supposed to receive the notice (one with direct pecuniary interest in the estate: heirs, devisee, creditors)
ii. Duties of personal representative (p.31)(1) Inventory and collect assets of decedent (at least on paper, know what assets are); (2) manage and maintain the assets during administration process; (3) receive and pay the claims of creditors and tax collectors; (4) clear all titles (car, real estate, stock or bonds) and (5) distribute the remaining assets to those entitled.
iii. Terminology
b. Common law

Will

No Will

Decedent

Testator

Intestate

Succession

Devise (real)
Bequest (personal)
Legacy ($)

Descent or inheritance
Distribution or inheritance
Distribution or inheritance

Recipient

Devisee (real)
Legatee (personal)
Legatee ($)

Heir
Distribute
Distribute

c. UPC

Will

No Will

Decedent

Testator

Intestate

Succession

Devise

Intestate Succession

Recipient

Devisee

Heir

iv. Formal/traditional process. Initiated by filing of a petition by interested party (devisee, intestate heir, executor or creditor). Interested party files petition for probate if there is a will K.S.A. § 59-2220; petition for administration if intestate. K.S.A. § 59-2219 Petition for administration must include names/addresses of heirs, probable value of assets, etc. Probate court approves PR (most steps taken by PR to be approved by probate court) and monitors actions. Court examines all accountings and discharges PR. – ON Exam, no worry to memorize any statutes
v. Less-traditional processes.
1. Simplified administration. Streamlined, informal process as an alternative (including KS) Between filing and final hearing, PR is authorized to pay claims, sell personal property and make partial distributions to heirs/devisees without court supervision. Court examines accountings at noticed, final hearing. K.S.A. §§ 59-3201-3206
2. Informal administration. Even less formal process. Petition contains statement regarding how assets will be distributed. Court determines whether informal admin. is appropriate and PR acts alone to manage estate. PR is officially discharged once debts listed in court order are paid. K.S.A. §§ 59-3301-3306
3. Available only if circumstances are right (requirements to be met): e.g., consider mental competency of testator, value of estate (more expensive, more complex), or a lot of debts (then not available)
vi. Statute of limitations (p.35)Time limit within which petition must be filed by interested party; otherwise, barred.K.S.A. § 59-617 (six months after death); UPC §3-108(1990) (three years) from date of death
1. Non-claim statutes. Time during which a creditor must assert claims against the estate; otherwise, barred.K.S.A. § 59-2239 (four months after official notice to creditors)
vii. Contesting a will. Attempt to block a will from admission to probate by someone who has a direct, tangible interest in the estate because the will was not properly executed, properly executed but later revoked, or superseded by later will or forged
1. Timing. Contest must be made during the administration process and before the final settlement. K.S.A. § 59-2225 Competing wills may be presented for probate even after the initial will has been admitted. K.S.A. § 59-2226 (competing wills such as later superseding will, but probably still to be filed within 6 months)
viii. Is probate necessary? Sometimes you can but sometimes you can’t avoid.
d. Expenses of the probate: attorney fees, delay, sometimes reluctant to expose family lines to public
e. Ways to avoid probate process: put all assets in nonprobate type of interest (cf. car, stock, bond: need official documentation for transfer of title; tax complexities – requires probate process)
f. Some J: provides statutes not requiring probate (small bank account)

INTESTATE SUCCESSION (p.59)

Generally. Statutory method by which property is distributed in the absence or in place of a will. (Cases might provide good interpretations of the statutes)

i. Arises in three instances:
1. Decedent dies without a will.
2. Decedent dies partially intestate (not all assets included in will).
3. Decedent’s will or trust calls for the application of the intestate succession statute.
ii. Policy goal. Statutes seek to approximate what the average person would want done with his assets had he thought to make his own will.
iii. UPC (Uniform Probate Code): proposed statutes, not in effect unless adopted by a state (half states adopted; KS adopted partially)

Spouse’s share. All states provide for a surviving spouse in some way. Typically, the spouse receives all of the assets if no surviving issues (direct lineal descendents); if surviving issue, the spouse gets whatever is stated in the statute and the rest goes to the issue.

i. UPC. Statute provides for spouse’s share depending upon surviving descendants and/or parents. UPC § 2-102 (p. 61)
a. (1)(i): entire intestate estate if no kids, grand kids, or parents
b. (1)(ii): entire if he and she have their own kids, but not from another marriage
c. (2): 200k plus three-fourths of balance if no kids, grand kids survive, but a parent does
d. (3): 150k + 1/2 of rest if decedent has issue of spouse; but she has other issue of not his
e. (4): 100k + 1/2 of rest if his descendants not her kids
ii. Kansas. If the decedent is survived by a spouse and issue, the spouse takes ½ and the issue share the other ½. A surviving spouse with no issue takes all. Surviving issue, with no surviving spouse, share all. K.S.A. § 59-504 to 08

Shares of heirs other than surviving spouse UPC §2-103(p.61)

1. Passes in the following order
a. 1. decedent’s descendents by order of representation
b. 2. if no descendents to the parents
c. 3. if no descendants or parents to the descendents of the parents (brothers and sisters)
d. 4. if none to grandparents or descendents of the grandparents; half goes to D’s surviving paternal grandparent(s) or to the descendants of parental grandparents and half goes to D’s maternal relatives
i. if no surviving grandparent or descendant of a grandparent on either side, entire estate passes to Ds relatives on other side – up to grandpar

as alive for purposes of intestate succession
1. Gestation (purposes of inheritance) presumption.
Common Law general rule – Child born within 280 days of decedent’s death is presumed alive at the time of decedent’s death. Otherwise, child/mother bear burden of proving paternity (rebuttable). – treated as if you were alive
i. Uniform Parentage Act §204 (2002): rebuttable presumption of 300 days (p.100)
iii. Nonmarital Children (not talked in a class)
d. Common law: a child born out of wedlock could not inherit from father or mother. If child died, only spouse and descendents could inherit, otherwise to the state
e. Contemporary law:a child born out of wedlock can always inherit from mother, but rules about inheritance from father vary. There would usually have to be proof that he was the father; or proof of a subsequent marriage.

Disinheritance. Effective disinheritance requires that decedent “affirmatively devise” the entire estate to somebody else (leaving nothing to fall into intestate succession).

i. Majority rule. Disinheritance, standing alone, is not enough. (Will saying “I leave my son nothing” is ineffective if son is an intestate heir.)
ii. UPC. Affirmative disinheritance will suffice. UPC § 2-101(b), p. 61
a. “may expressly exclude or limit right of individual to succeed to property of decedent”

Advancements. Inter vivos transfers by decedent may be treated as early transfers of the inheritance and counted as part of the donee’s prospective intestate share. (will be credited against donee)

i. Policy justification. Based on the fiction that parents want to treat all children equally, evenly in the long run.
ii. Inter vivos transfer treatment options (one of three things).
1. Loan. Child has an obligation to repay and this is considered as part of parent’s probate estate (and taken into account when final distribution is calculated).
2. Absolute gift. Child has no obligation to repay; not considered asset of probate estate. Not calculated at all when final distribution is calculated. Total windfall
3. Advancement. Child has no obligation to repay, but the advancement is taken into account when final distributions are calculated.
i. A small amount deemed to be a gift, not an advancement
iii. Determination.
b. Under common law, any lifetime transfer to a child is presumed to be an advancement.
c. Modern – Matter of parent’s intent. Jury determines whether inter vivos transfer was an advancement.
iv. Factors. Some factors to determine advancements include:
1. Size of transfer. Substantial transfers create a rebuttable presumption that it is an advancement.
2. Legal/moral obligations. Obligations of the parents (e.g., high school tuition) are not considered advancement.
v. Calculation. (p.114) “if a gift is treated as an advancement,” Donee must allow value of advancement to be brought into hotchpot (symbolic return of an advancement to the estate)if donee wants to share in the decedent’s estate, which is not required. (Must calculate to determine if donee would gain or lose by participating.) Might be a gift, but PROF on exam would say it is an advancement
a. What’s larger? Original advancement or share of estates after advancement is added to the rest (share of hotchpot)
i. Whatever is larger, the donee takes that
b. E.g., D to A inter-vivos advancement (not loan or gift) of 5k and to B of 1k; to C of nothing; PE= 6k with intestate succession (separate from advancement)
i. Hotchpot: 12k and each shares 4k; A’s option would be not going into the hotchpot and keeps 5k and walks off