Estates and Trusts
Probate: Those properties that needs to be disposed of by will or testate statute.
– Initiated by a petition filed at the probate court.
– If there is a will, called petition for probate, no will, petition for administration.
– There is a PR (personal rep, appointed by probate court).
– If there is a will, called the executor, no will PR
o Letters testamentary- authorizes person to act as PR
o There has to be notice given to all parties of interest (parties who have something tangible at risk: potential heirs, potential devisees, predators)
As the PR:
Collect and inventory the belongings of decedent, to se what the assets are
To manage and maintain the assets during the administration process
Take care of the creditors, pay them off, including tax authorities.
Clear up all titles like cars and land and homes and stocks and bonds.
To tangibly distribute the remaining assets to those who are to receive.
Non-probate: Not disposed of by will or testate, prearranged.
– Joint tenancy
– Pension plans
– Called Will Subs (non-probate transfers)
Intestate: Die without a will, the particular state steps in by statute and dictates who gets your assets.
Descent or inheritance
Distribution or inheritance
Distribution or inheritance
– In KS, almost always start with 59-
– Look at the statute and make sure you include ALL things required, such as names and addresses of spouse, children, siblings, parents, etc.
– Some courts have simplified processes, including KS,
o Less judicial interference
o Less expensive
§ 59-3201 – 3206 : Simplified Administration
§ 3301-3306 : Informal Administration
· Are there likely to be any challenges to the will?
· Does the dollar value of the estate make it complex?
· Is the solvency of the estate able to be simplified (amount of debt)
– Statue of Limitations:
o Nonclaim Stat- the time within which the predator is required to assert the claim against the decedent or lose the claim… KS says 4 months following publication of notice.
– Contesting a will:
o An attempt to prevent a particular will to be admitted to probate, on a variety of basis. You do not want this will probated and are challenging the validity.
§ The will was not properly executed in the first place
§ It was properly executed, but was later revoked by the testator
§ Or properly executed, but later superseded by a later will, should not be probating this will
o Who can contest a will?
§ Someone with a direct pecuniary interest at stake, riding on whether the will is probated or not
§ KS 59-2225: If you are going to contest a will, it has to be done during the probate process.
· Qualification in KS: 59-2226: Allows for a competing will to enter into probate.
· KS courts would probably say: If you want to challenge a first will by presenting a second will, you have to do that within 6 months of the decedent.
Points about probate process
– Is probate necessary?
o Not if you put all your assets in non-probate transfer arrangements (example: joint tenancy, then must have document that transfers title).
o Small bank accounts and some other items sometimes do not have to be probated (according to Statute).
– The common ancestor may have a different status between you and your collateral: Such as a nephew, nephew’s grandparents are your parents.
– Chart on p. 79 shows you how to rank collaterals (not the same as comparing issues)
o Count generational steps from the decedent
o If you have a 5 competing with a 6, does the 5 always take completely?
§ Not necessarily, the 6 could take by representation.
– If transferring issue to collateral, under English the first person under the common ancestor assumes the position of the child level
p. 82 Problems
Under §2-103 all of the remaining estate would go to the decedents mother.
§2-103(4) Half would go to cousin on mothers side, half would go to cousin on fathers side. Each would get ¼
§2-103(4) B comes out with everything, because we do not look at great-grandparents.
– Mother is a widow, there are two kids (son and daughter). Daughter dies, not survived by any issue, but leaves a husband. The husband cannot step up and take through the daughter. In-laws are not permitted to take in that situation. The daughter does not qualify for an intestate heir anyway because she did not survive her mother. If you want to take intestate, you have to survive.
– Mother and daughter are on the same airplane and there is a crash. Both die. The daughters husband steps in and tries to claim through her. The daughter would have to have survived the mother. The statute is called The Uniform Simultaneous Death Statute.
The”beneficiary” is assumed to have predeceased the donor (daughter presumed