Session of 1998
HOUSE BILL No. 2964
By Representative Weber
2-13
9
AN ACT concerning probate; creating the court
trustee administered
10 estate; amending
K.S.A. 59-3202 and K.S.A. 1997 Supp. 23-495 and
11 23-496 and repealing
the existing sections.
12
13 Be it enacted by the Legislature of the
State of Kansas:
14 New Section. 1. (a)
In addition to the simplified estate and the su-
15 pervised estate, there is hereby created
the court trustee administered
16 estate. If the court has determined that
the estate shall be administered
17 as a court trustee administered estate,
further proceedings shall be under
18 the provisions of this act unless the court
requires such estate to be a
19 supervised estate.
20 (b) All procedures,
notices, bonds, hearings and appeals under this
21 act shall proceed as set out under other
provisions of the Kansas probate
22 code, unless otherwise provided herein.
23 (c) All letters
testamentary and letters of administration issued pur-
24 suant to this act shall be designated on
their face as letters testamentary
25 or letters of administration issued under
the court trustee administered
26 estate.
27 (d) No provision of this
act shall be construed to eliminate any re-
28 quired notice of petition to sell, lease or
mortgage real property.
29 (e) If the district
court does not have a court trustee in the judicial
30 district, the district court judge may act
as the court trustee for the pur-
31 poses of this act.
32 New Sec. 2. (a) The
executor or administrator appointed pursuant
33 to K.S.A. 59-3202 and amendments thereto,
shall collect the decedent's
34 assets and have such assets appraised. Any
real property owned by the
35 decedent shall be appraised by three
different qualified appraisers.
36 (b) Upon the return of
the appraisement by the executor or admin-
37 istrator to the clerk of the district
court, the estate of a decedent, by order
38 of the court shall be referred to a court
trustee for proof and determi-
39 nation of debts and claims of creditors,
establishment of their priority,
40 determination of the amount of the
respective shares of the legatees and
41 distributees, and any other matter
necessary and proper for the settle-
42 ment of the estate. A court trustee may not
charge to the estate a fee
43 greater than $250 for the settlement of an
estate, except upon approval
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2
1 of the court because of complicating
issues or problems attendant to such
2 settlement and amount of time
involved in and about the estate's reso-
3 lution.
4 (c) (1) If
the executor or administrator delivers to the clerk an ap-
5 praisement of the assets of the
estate showing such assets value to be
6 $200,000 or less, exclusive of
nonprobate assets, the clerk shall record
7 such appraisement and publish a
notice once a week for two consecutive
8 weeks in a newspaper of the county,
authorized by law to publish legal
9 notices, substantially as
follows:
10
NOTICE OF PENDING ESTATE
11 ``Notice is hereby given that
settlement of the estate of the following named decedents
12 will proceed without reference to a court
unless within 90 days from the first publication of
13 this notice such reference is requested by
a party in interest or an unpaid creditor and good
14 cause is shown to support such
reference.
15 Dated this ______ day of
________, ________.
16
_________________________
17
Clerk
of the District Court
18
of
________ County, Kansas''
19 (d) The clerk shall
charge to the executor or administrator, and re-
20 ceive, the reasonable cost of publication
of the notice.
21 (e) The executor or
administrator, within a reasonable time after the
22 date of recordation of the appraisement in
such case, shall make a report
23 to the court trustee of the personal
representative's receipts, disburse-
24 ments and distribution, and shall make
affidavit that all claims against the
25 estate, for expenses of administration,
taxes and debts of the decedent,
26 have been paid in full. The clerk shall
collect a fee of $10 for recording
27 such report and affidavit, and for
publication of the notice hereafter pro-
28 vided, the fee to be in lieu of any other
fee provided by law for recording
29 a report of settlement of the accounts of a
decedent's executor or admin-
30 istrator. At least once a month the clerk
shall cause to be published once
31 a week for two consecutive weeks in a
newspaper of the county authorized
32 by law to publish legal notices, with
regard to reports received in the prior
33 month, a notice substantially as
follows:
34
NOTICE OF FILING OF ESTATE ACCOUNTS
35 ``I have before me the
account of the executor(s) or administrator(s) of the estates of
the
36 following deceased persons:
37
___________________________________________________________________________
38
___________________________________________________________________________
39
___________________________________________________________________________
40 Any person having a
claim against the estate of any such deceased person, or who
has
41 any beneficial interest therein, may appear
before the court trustee or the court at any time
42 within 30 days after first publication of
this notice, and request reference of the estate to
43 the court or object to confirmation of the
accounting. In the absence of such request or
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3
1 objection, the accounting may be
approved by the court.
2
_________________________
3
Clerk
of the District Court
4
of
________ County, Kansas''
5 (f) If no such
request or objection is made to the court trustee or the
6 court, the court may confirm the
report of the executor or administrator,
7 and thereupon the executor's or
administrator's surety shall be dis-
8 charged. If such objection or request
is made, the court may confirm the
9 accounting and record the same, or
may refer the estate to the court
10 trustee for further review. The executor or
administrator has 20 days after
11 the date of the filing of a claim or claims
against the estate of the decedent
12 to approve or reject the claim before the
estate is referred to the court
13 and if all claims are approved as filed,
then no reference may be made.
14 (g) If upon the return
and recordation of the appraisement, it appears
15 to the court trustee that there is only one
beneficiary of the estate and
16 that the beneficiary is competent at law,
there shall be no further admin-
17 istration upon the estate, and no reference
to the court, unless, for due
18 cause, the court orders further
administration. The executor or admin-
19 istrator has 20 days after the date of the
filing of a claim or claims against
20 the estate of the decedent to approve or
reject one claim before the estate
21 is referred to the court and if all claims
are approved as filed, then no
22 reference may be made. The bond of the
executor or administrator and
23 such executor's or administrator's surety
shall be discharged one year after
24 the date of qualification of the executor
or administrator if no claim has
25 been filed with the court trustee and no
suit has been instituted against
26 the executor or administrator. The clerk
shall publish a notice once a
27 week for two consecutive weeks in a
newspaper of the county authorized
28 by law to publish legal notices,
substantially as follows:
29
NOTICE OF UNADMINISTERED ESTATE
30 ``Notice is hereby given
that, there being only one beneficiary of the deceased, there
will
31 be no administration of the estate unless
within 90 days demand for administration be made
32 by a party in interest or an unpaid
creditor.
33 Dated this ______ day of
________, ________.
34
_________________________
35
Clerk
of the District Court
36
of
________ County, Kansas''
37 (h) The clerk shall
charge to the executor or administrator, and re-
38 ceive, the reasonable cost of publication
of the notice.
39 (i) If no person demands
administration and no creditor appears in
40 response to the notice hereinabove
provided, the court trustee shall enter
41 an order declaring the estate closed,
without final settlement or waiver
42 thereof and alienation of the decedent's
real estate more than six months
43 after the date of the notice to a bona fide
purchaser for value shall be
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1 free of any lien for taxes or debts
of the decedent.
2 New
Sec. 3. Each month the court trustee shall publish a
notice des-
3 ignating a convenient time and place
when and where claims against the
4 estate or estates referred to the
court trustee during the previous calendar
5 month may be presented, examined and
allowed. The time so designated
6 by the court trustee shall not be
less than two months nor more than
7 three months from the date of the
first publication of the notice herein-
8 after set forth. The notice shall be
to the following effect:
9 To the creditors and
beneficiaries of the estate(s) of
_________________________________
10
___________________________________________________________________________
11
(Naming the decedent or decedents, as the case may
be)
12 All persons having claims
against the estate(s) of ____________________________________
13
___________________________________________________________________________
14
(Naming the decedent or decedents, as the case may
be)
15 deceased, whether due, or not, are notified
to exhibit same, with the voucher thereof, legally
16 verified, to the undersigned, at
(designating the place) on or before the ____________________
17 day of ________, ________; otherwise they
may by law be excluded from all
18 benefit of such estate(s). All
beneficiaries of such estate(s) may appear on or before such
19 day to examine such claims and otherwise
protect their interests.
20 Given under my hand this
______ day of ________, ________.
21
____________________
22
Court
trustee
23
County of ____________________
24 Such notice shall be
published in a newspaper of the county authorized by law to
publish
25 legal notices.
26 New Sec. 4. In the
court trustee's report of settlement of the ac-
27 counts of the executor or administrator,
the court trustee shall certify that
28 the notice required by section 3, and
amendments thereto was published
29 and shall state the name of the newspaper
in which notice was published
30 and the dates of publishing.
31 New Sec. 5. When
the court trustee has fixed the time for presen-
32 tation of claims, the executor or
administrator shall file with such court
33 trustee a list of the names and post-office
addresses of all known creditors
34 of the estate and of all distributees and
legatees, to each of whom the
35 court trustee shall cause a copy of such
notice to be forwarded by United
36 States mail, addressed according to such
list. Failure to mail, or to receive,
37 such notice shall not relieve and any
creditor, distributee or legatee of
38 the duty to present and prove the claim as
required by such notice.
39 New Sec. 6. Every
claim against the estate of a decedent shall be
40 itemized, accompanied by proper vouchers,
and shall state the character
41 of the claim, whether open account, note,
bond, bill, writing obligatory,
42 judgment, decree or other evidence of debt,
and the amount thereof, and
43 from what date and on what items interest
runs and at what percent per
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5
1 annum, and stating further that the
claim is just and true, and that the
2 creditor, or any prior owner of the
claim, if such there was, has not re-
3 ceived any part of the money stated
to be due, or any security or satis-
4 faction for the same, except what is
credited. The voucher for a judgment
5 or decree shall be an abstract
thereof; for a specialty, bond, note, bill of
6 exchange, writing obligatory or other
instrument, shall be the instrument
7 itself, or a true copy thereof, or
proof of the same in case the instrument
8 be lost; and for an open account, an
itemized copy of the account. This
9 section shall not apply to taxes.
10 New Sec. 7. Every
claim so itemized, so accompanied by proper
11 vouchers and so verified, shall be taken to
be proved, and shall be allowed,
12 unless before the court trustee makes up
the court trustee's report of
13 claims the executor, administrator,
distributee, legatee, or, in the case of
14 estates that appear to be insolvent, a
creditor, shall file before the court
15 trustee a counter affidavit, denying the
claim in whole or in part. When
16 such counter affidavit is so filed the
court trustee shall fix a time and place
17 for hearing evidence for and against such
claim and give reasonable notice
18 of such time and place to the claimant, the
party objecting and the ex-
19 ecutor or administrator. If the court
trustee, having held such hearing,
20 does not allow any such claim, the claimant
shall pay the expense of having
21 the testimony adduced at such hearing
recorded or transcribed or both.
22 The court trustee, in the exercise of the
court trustee's sound discretion,
23 may require that the claimant post a bond
or other security sufficient to
24 pay the estimated cost of having such
testimony recorded and transcribed
25 as a condition precedent to holding such
hearing. If such claim, having
26 been disallowed by the court trustee,
subsequently shall be allowed as a
27 claim against the estate, the claimant
shall be entitled to recover from
28 the estate the expenses so paid. Claims for
funeral expenses shall be made
29 and determined in the same manner as any
other claims.
30 New Sec. 8. Claims
against any decedent's estate may be filed with
31 or presented to the court trustee to whom
the estate has been referred,
32 at any time following the qualification of
the executor or administrator,
33 notwithstanding the notice to creditors
shall not have been published
34 previously to such filing or
presentation.
35 New
Sec. 9. Whenever at the death of any person there shall
be a
36 contingent or unliquidated claim against
the decedent's estate, or an out-
37 standing bond, recognizance or undertaking
upon which the deceased
38 shall have been principal, surety or
indemnitor, and on which at the time
39 of the decedent's death the liability is
still contingent or unliquidated, the
40 claimant or the surety shall have the right
to file with the court trustee,
41 executor or administrator, as the case may
be, at the time provided for
42 the notice, proof of the claim in the same
manner as other claims, stating
43 in the claimant's affidavit the facts upon
which such contingent or unli-
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1 quidated liability is based and the
probable amount thereof. When so
2 filed there shall be no distribution
of the assets of the estate, except as
3 otherwise provided in this act,
without the reservation of sufficient mon-
4 eys to pay, when the amount is
finally determined, such contingent or
5 unliquidated claim, or a proportion
thereof equal to what is paid to other
6 creditors of the same class. If such
liability becomes fixed before a court
7 trustee completes the court trustee's
report, then evidence of the same
8 may be filed with the court trustee
in lieu of the contingent claim herein
9 provided for, and such claim as fixed
shall be a debt of the estate.
10 New Sec. 10. The
court trustee may adjourn from time to time the
11 hearing for the presentation of claims as
well as the hearings for proof of
12 disputed claims until all the presented
claims and the objections to any
13 claims be fully heard and passed on.
14 New Sec. 11. When a
creditor against whom the deceased had any
15 claim or claims shall present a claim the
executor or administrator may
16 exhibit any offset, if the offset has
survived, that the deceased may have
17 to such claim, and the court trustee shall
ascertain and allow the balance
18 against or in favor of the estate.
19 New Sec. 12. Any
heir or devisee entitled to have any lien on the
20 real estate that descended or was devised
to such heir or devisee dis-
21 charged out of the personal estate, or any
legatee entitled to have a lien
22 on specific personalty discharged out of
the other personalty, may, if the
23 creditor holding any such lien fails to
present and prove the creditor's
24 claim, present and prove such claim, and
have the same allowed or pro-
25 vided for, within the same time, to the
same extent, and by the same
26 means as such creditor.
27 New Sec. 13. No
claim barred by any statute of limitations shall be
28 allowed by a court trustee against the
estate of a decedent.
29 New Sec. 14. The
filing with or presentation to the court trustee or
30 to the county clerk of any claim against
the estate of a decedent, so far
31 as the running of any statute of
limitations is involved, shall have the same
32 effect as the institution of a civil action
or suit on such claim.
33 New Sec. 15. The
court trustee may authorize, and the executor or
34 administrator may make, payment of funeral
expenses, claims of physi-
35 cians and nurses for services rendered
during the last illness of the de-
36 cedent, and accounts of druggists and
hospitals for articles furnished and
37 services rendered during the same period,
to the extent that any of the
38 same are preferred; also of debts due the
United States, debts due the
39 state of Kansas, and taxes, in advance of
the determination of other claims.
40 New
Sec. 16. Nothing in this act shall be construed to
prevent any
41 executor or administrator, when the
executor or administrator thinks it
42 necessary, from commencing any action or
suit against any person, or
43 from prosecuting to final judgment or
decree any action or suit com-
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1 menced by the deceased in the
deceased's lifetime, if the cause of such
2 action or suit survives, for the
recovery of any debt or claim, or from
3 having execution on any judgment or
decree. The defendant in any such
4 action or suit, notwithstanding the
defendant may have already filed the
5 defendant's claim before a court
trustee, shall set off any claim the de-
6 fendant may have against the
deceased, if proper to be allowed as a setoff;
7 and if final judgment or decree shall
be rendered in favor of the defend-
8 ant, the same shall be certified by
the clerk rendering it to the court
9 trustee before whom the estate of the
deceased is pending, and the
10 amount thereof shall be allowed in the same
manner as other claims
11 against such estate filed and proved before
the court trustee.
12 New Sec. 17. After
the completion of the hearings for the presen-
13 tation of claims and for reception of proof
for and against disputed claims,
14 but not later than five months from the
qualifications of the executor or
15 administrator, the court trustee may, and
upon motion of any interested
16 person shall, prepare a report of claims
against the estate, showing in such
17 report all the claims presented, or
exhibited in offset, or certified to the
18 court trustee by any court, and stating as
to each claim how much was
19 allowed and how much disallowed, together
with the final balance,
20 whether in favor of the creditor or the
estate. The court trustee shall also
21 show in such report what assets are in the
hands of the executor or ad-
22 ministrator, and shall designate how the
same shall be applied to the
23 payment of debts and claims, also in what
order of priority the claims
24 shall be paid and also what sum shall be
reserved to pay contingent or
25 unliquidated claims and claims not matured,
or a proportion of any such
26 claim equal to what is allowed to other
creditors of the same class, when
27 payment of such claims shall become proper.
Such report shall also show
28 what persons are entitled to share in the
estate as legatees, and as such
29 in what property or amounts; or as
distributees, and as such in what
30 proportions.
31 New Sec. 18. (a)
For the purposes of this section the term ``persons
32 interested in the estate'' shall include
all persons, firms and corporations
33 who may be entitled to receive or who have
received any property or
34 interest which is required to be included
in the gross estate of a decedent,
35 or any benefit whatsoever with respect to
any such property or interest,
36 whether under a will or intestacy, or by
reason of any transfer, trust,
37 estate, interest, right, power or
relinquishment of power, taxable under
38 any estate tax law of the United States or
this state heretofore or hereafter
39 enacted.
40 (b) Whenever it appears
upon any settlement of accounts or in any
41 other appropriate action or proceeding,
that an executor or administrator
42 has paid an estate tax levied or assessed
under the provisions of any estate
43 tax law of the United States or inheritance
tax law of this state, upon or
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1 with respect to any property required
to be included in the gross estate
2 of a decedent under the provisions of
any such law, the amount of the
3 tax so paid shall be prorated among
the persons interested in the estate
4 to whom such property is or may be
transferred or to whom any benefit
5 accrues. Such apportionment shall be
made in the proportion that the
6 value of the property, interest or
benefit of each such person bears to the
7 total value of the property, interest
and benefits received by all such
8 persons interested in the estate,
except that in making such proration
9 each such person shall have the
benefit of any exemptions, deductions
10 and exclusions allowed by such law in
respect of such person or the prop-
11 erty passing to such person; and except
that notwithstanding the preced-
12 ing provisions of this sentence in cases
where a trust is created, or other
13 provision made whereby any person is given
an interest in income, or an
14 estate for years, or for life, or other
temporary interest in any property
15 or fund, the tax on both such temporary
interest and on the remainder
16 thereafter shall be charged against and
paid out of the corpus of such
17 property or fund without apportionment
between remainders and tem-
18 porary estates.
19 (c) In all cases in
which any property required to be included in the
20 gross estate does not come into the
possession of the executor or admin-
21 istrator as such, the executor or
administrator shall be entitled, and it shall
22 be the executor's or administrator's duty
to recover from whomever is in
23 possession, or from the persons interested
in the estate, the proportionate
24 amount of such tax payable by the persons
interested in the estate with
25 which such persons interested in the estate
are chargeable under the
26 provisions of this section.
27 (d) No executor or
administrator shall be required to transfer, pay
28 over or distribute any fund or property
with respect to which a federal
29 estate tax or Kansas inheritance tax is
imposed until the amount of such
30 tax or taxes due from the devisee, legatee,
distributee or other person to
31 whom such property is transferred is paid
to such executor or adminis-
32 trator, or, if the apportionment of tax has
not been determined, adequate
33 security is furnished by the transferee for
such payment.
34 (e) It is expressly
provided that the foregoing provisions of this section
35 are subject to the following qualification,
that none of such provisions
36 shall in any way impair the right or power
of any person by will or by
37 written instrument executed inter vivos to
make direction for the payment
38 of such estate taxes, and to designate the
fund or funds or property out
39 of which such payment shall be made, and in
every such case the provi-
40 sions of the will or of such written
instrument executed inter vivos shall
41 be given effect to the same extent as if
this section had not been enacted.
42 (f) The provisions of
this section shall be applicable to all estates of
43 decedents dying after the enactment of this
section.
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9
1 New
Sec. 19. The court trustee in the court trustee's report
on claims
2 shall direct the executor or
administrator to withhold from distribution
3 to beneficiaries sufficient assets to
take care of such contingent and un-
4 liquidated claims and claims not
matured as shall be presented to and
5 proved before the court trustee, or a
proportion thereof equal to what is
6 paid to other creditors of the same
class, and such assets shall be so
7 withheld until such contingent
liability becomes fixed, or such unliqui-
8 dated liability becomes liquidated,
or until such claims not matured ma-
9 ture, as the case may be, at which
time such assets shall be disbursed or
10 distributed as the court trustee in the
court trustee's report may have
11 designated and the circumstances may
require. In any case where there
12 are sufficient assets to pay all liquidated
claims against any estate, any
13 legatee or distributee of the estate shall
be entitled to be paid such leg-
14 atee's or distributee's share of the full
surplus of the estate, after payment
15 of, or provision for, all liquidated
claims, both those matured and those
16 not matured, has been made, upon such
legatee's or distributee's giving
17 to the court trustee a bond, executed by
the legatee or distributee or
18 some other person, with sufficient
security, to be approved by the court
19 conditioned to refund a due proportion of
any unliquidated or contingent
20 debts or demands which may afterwards
appear against the decedent or
21 become liquidated or have their liability
fixed, and of the costs attending
22 their recovery. Such bond shall be filed in
the clerk's office where probate
23 of the will or administration of the estate
was had, and recorded by such
24 clerk in the record of bonds. After the
giving of any such bond or bonds,
25 creditors holding unliquidated or
contingent debts and demands, as to
26 the estate distributed by virtue of the
giving of such bond or bonds, shall
27 look only to such bond or bonds for the
payment of such debts and de-
28 mands.
29 New Sec. 20. After
preparing a report of claims as hereinafter pro-
30 vided, the court trustee shall give notice
thereof, either verbally or in
31 writing, delivered personally or by mail,
to all parties interested or such
32 parties' attorneys, and hold the report and
the evidence taken in connec-
33 tion therewith in the court trustee's
office for 10 days for the examination
34 of interested parties. Any party may
inspect such report and evidence and
35 file exceptions thereto before the court
trustee. The court trustee in all
36 cases, shall return with the court
trustee's report all the evidence taken
37 in connection with any claim listed in such
report, and the exceptions, if
38 any, taken to the report, and shall submit
such remarks upon the excep-
39 tions as the court trustee deems pertinent.
After the expiration of such
40 10 days the court trustee shall return the
report, evidence, exceptions and
41 remarks to the court, and until the report
is acted upon by the court it
42 shall be subject to further exceptions by
the same or other parties inter-
43 ested.
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10
1 New
Sec. 21. (a) The hearing on the report of claims shall be
held
2 at least 10 days after the return by
a court trustee of the report. If there
3 be no exceptions to such report it
shall be confirmed by the court. If good
4 cause is shown for the introduction
of further proof regarding any matter
5 contained in such report, the report
shall be referred back to the court
6 trustee for the making of further
proof and the making of a supplemental
7 report. An appeal shall proceed as
set out under the Kansas probate code.
8 (b) The report of
claims, and the supplemental report of claims, if
9 there is one, when confirmed by the
court shall be recorded by the clerk
10 of the district court.
11 New Sec. 22. (a) If
the applicable assets of the estate are insufficient
12 to pay all claims against the estate in
full, the executor or administrator
13 shall make payment in the following
order:
14 (1) Costs and expenses
of administration;
15 (2) reasonable funeral
expenses;
16 (3) debts and taxes with
preference under federal law;
17 (4) unpaid child support
which is due and owing at the time of the
18 decedent's death;
19 (5) debts and taxes with
preference under other laws of the state of
20 Kansas;
21 (6) reasonable and
necessary medical and hospital expenses of the
22 last illness of the decedent, including
compensation for persons attending
23 the decedent during the last illness;
and
24 (7) all other
claims.
25 (b) If the applicable
assets of the estate are insufficient to pay all
26 claims within a class, those claims within
that class shall be paid on a pro-
27 rata basis. No preference shall be given in
the payment of any claim over
28 any other claim of the same class, and a
claim due and payable shall not
29 be entitled to a preference over claims not
due.
30 (c) Notwithstanding the
provisions of subsection (a), if the payment
31 of all funeral expenses of the decedent is
provided for by an irrevocable
32 pre-need funeral contract or trust, neither
the decedent's estate nor the
33 decedent's surviving spouse shall have any
obligation for the payment of
34 such funeral expenses.
35 New Sec. 23. No
payment shall be made to creditors of any one class
36 until all those of the preceding class or
classes shall be fully paid. When
37 the assets are not sufficient to pay all
the creditors of any one class, the
38 creditors of such class shall be paid
ratably. However, an executor or
39 administrator who, after six months from
qualification, pays a debt of the
40 decedent, shall not thereby be personally
liable for any debt or demand
41 against the decedent of equal or superior
dignity, whether it be of record
42 or not, unless before such payment the
executor or administrator has
43 notice of such debt or demand by action,
suit or presentation thereof to
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11
1 the court trustee within the time
allowed by law.
2 New
Sec. 24. If any court trustee after six months from the
appoint-
3 ment of the executor or administrator
of the estate, and after the report
4 of claims, if any, has been made by
the court trustee and been confirmed
5 by the court, and after withholding
such funds as the court trustee directs
6 to meet any contingent and unmatured
claims and claims in action or suit,
7 shall pay any legacy given by the
will, or distribute any of the estate of
8 the decedent in accordance with the
court trustee's report as confirmed,
9 if any, or according to law in case
of intestacy or according to the will, if
10 any, such executor or administrator, on
account of what is so paid or
11 distributed, shall not be personally liable
for any debt or demand against
12 the decedent, whether it be of record or
not, unless, within the time fixed
13 for the presentation of claims or for suing
thereon, such claim was duly
14 presented or action or suit thereon
commenced and process served on
15 such executor or administrator.
16 New Sec. 25. After
the report of a court trustee, if any, on the claims
17 against the estate of any decedent has been
confirmed, or after six months
18 from the time of the appointment of the
executor or administrator shall
19 have elapsed, the executor or administrator
may pay the claims allowed
20 by the court trustee against the decedent's
estate or certified to the court
21 trustee by courts wherein judgments or
decrees against the estate have
22 been rendered, according to the order of
payment set forth in the court
23 trustee's report, or as directed by the
court trustee, and pay legacies and
24 distribute the surplus among the parties
entitled thereto in the amounts
25 and proportions determined by the court
trustee withholding such sum
26 as such report as confirmed states to be
necessary for the payment of any
27 contingent, unliquidated or disputed
claims, or claims not matured, or
28 the proportions of any such equal to what
is allowed to other creditors of
29 the same class, and upon the determination
from time to time of any such
30 claims further payments and distributions
may be made as the circum-
31 stances require. If the executor or
administrator shall fail or refuse to pay
32 claims and make distribution within one
month following the time when
33 the executor or administrator may legally
do so, and no appeal has been
34 taken from the order of confirmation of the
report on claims, any party
35 interested may institute a civil action
against such executor or adminis-
36 trator to compel payment and distribution
as provided by section 23, and
37 amendments thereto.
38 New Sec. 26. (a)
Notwithstanding any other provision of the law, if
39 an estate is otherwise ready for final
settlement and the executor or ad-
40 ministrator holds any sum or sums of money
necessary for the payment
41 or distribution of any contingent,
unliquidated, unmatured or disputed
42 bequest or claim, which cannot be paid or
distributed because the where-
43 abouts of the claimant or distributee are
unknown, or cannot be paid or
HB 2964
12
1 distributed for any other reason, the
executor or administrator, with the
2 consent of the court trustee to whom
the estate has been referred, may
3 pay such sum or sums to the general
receiver of the court in the county
4 in which the estate is being
administered. Any such payment, together
5 with a receipt therefor, shall be
reflected and shown in the court trustee's
6 final report. After the report is
confirmed by the court, such executor or
7 administrator shall not be personally
liable for any such request or claim.
8 (b) Any person
entitled to any funds paid to a general receiver of a
9 court pursuant to the provisions of
this section may petition the court in
10 a summary proceeding for an order directing
the distribution of such
11 funds. Any person believed to have any
claim to or interest in such funds
12 shall be made a party defendant to such
petition and shall be given such
13 notice of any hearing thereon as the court
may direct. The court shall
14 enter an order directing the distribution
of such finds to the person or
15 persons entitled thereto. The costs of the
proceedings shall be paid from
16 the funds.
17 New Sec. 27. An
executor or administrator shall not be compelled
18 to pay any legacy given by the will, or
make distribution of the estate of
19 the decedent, until after six months from
the date of the appointment of
20 the executor or administrator of such
decedent, and not then unless the
21 report of claims against the estate made by
the court trustee has been
22 confirmed, and no appeal has been taken
from the court's order of con-
23 firmation.
24 New Sec. 28. Every
person including the secretary of revenue, hav-
25 ing a claim against deceased person,
whether due or not, after notice to
26 creditors has been published as prescribed
in this act, who has not pre-
27 sented a claim on or before the time fixed
in such notice, or before that
28 time has not instituted a civil action or
suit thereon, notwithstanding the
29 same be not barred by some other statute of
limitations that is applicable
30 thereto, shall be barred from recovering
such claim of or from the ex-
31 ecutor or administrator, or from thereafter
setting off the same against
32 the executor or administrator in any action
or suit whatever. If a surplus
33 remains after providing for all claims
presented in due time, or on which
34 action or suit shall have been commenced in
due time, and such surplus
35 shall not have been distributed by the
executor or administrator to the
36 beneficiaries of the estate, and the
claimant prove that the claimant had
37 no actual notice of the publication to
creditors nor knowledge of any
38 proceedings before the court trustee, such
creditor may prove such cred-
39 itor's claim either before the court
trustee or by action or suit and have
40 the same allowed out of such surplus. In
order that such late claims if
41 proved may be provided for, the court
trustee shall reopen the report if
42 the same has not been returned to the
court, or if returned, shall make
43 and return a supplemental report.
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13
1 New
Sec. 29. Every creditor who has not presented the
creditor's
2 claim to the court trustee before
distribution of the surplus by the exec-
3 utor or administrator, or before that
time has not instituted a civil action
4 or suit thereon against the executor
or administrator, if not barred by the
5 statute of limitation, may bring a
civil action against the distributees and
6 legatees, jointly or severally, at
any time within two years after such dis-
7 tribution. No distributee or legatee
shall be required to pay to creditors
8 suing by virtue of this section a
greater sum than the value of what was
9 received by such legatee or
distributee out the decedent's estate, nor shall
10 any distributee or legatee be required to
pay to any one creditor a greater
11 proportion of such creditor's debt than the
value of what was received by
12 such distributee or legatee bears to the
total estate distributed. A creditor
13 suing by virtue of this section shall not
recover against such distributees
14 and legatees the cost of such creditor's
civil action.
15 New Sec. 30. When
the right to bring action or suit against distri-
16 butees and legatees on any claim against
the decedents shall become
17 barred, the right to enforce such claim
against real estate shall also be-
18 come barred to the extent that such claim
could have been collected out
19 of the personal assets of the decedent. The
provisions of this section shall
20 not apply to liens upon real property
acquired or created in the lifetime
21 of the decedent, made or created to secure
claims due and payable in
22 future installments or at a future
date.
23 Sec. 31. K.S.A.
59-3202 is hereby amended to read as follows: 59-
24 3202. On the hearing of a petition for the
appointment of an administrator
25 or for the probate of a will where
administration is sought under the
26 Kansas simplified estates act or under
the court trustee administered es-
27 tate, the court shall determine
whether the estate shall be administered
28 as a simplified estate, a court trustee
administered estate or as a supervised
29 estate. In making such determination, the
court may consider the size of
30 the estate; the degree of kinship of the
heirs, devisees and persons seeking
31 appointment; the solvency of the estate;
the nature of the estate; the
32 wishes of the heirs and devisees; the
probable cost of estate administration
33 and settlement; and any other pertinent
matters.
34 Sec. 32. K.S.A.
1997 Supp. 23-495 is hereby amended to read as
35 follows: 23-495. The court trustee shall
have the responsibility for ad-
36 ministering estates pursuant to sections
1 through 30 and amendments
37 thereto, and for collection of
support or restitution from the obligor upon
38 the written request of the obligee or upon
the order of the court.
39 Sec. 33. K.S.A.
1997 Supp. 23-496 is hereby amended to read as
40 follows: 23-496. (a) The court trustee
shall be authorized and empowered
41 to pursue all civil remedies which would be
available to the obligee or
42 obligor in establishing and enforcing
payment of support or restitution.
43 (b) The court trustee
may also file motions for an increase or a de-
HB 2964
14
1 crease of the amount of support on
behalf of any child. Any such motion
2 to modify the amount of support shall
not be heard until notice has been
3 given to the obligee, the obligor and
their attorneys of record, if any.
4 (c) The court
trustee shall have the following additional powers and
5 duties upon approval of the
administrative judge:
6 (1) To issue
summonses, administrative subpoenas and subpoenas
7 duces tecum to obligors, obligees and
other witnesses who possess knowl-
8 edge or books and records relating to
enforcement of support or resti-
9 tution to appear in the office of the
trustee or before the district court
10 for examination;
11 (2) to administer oaths
and take sworn testimony on the record or by
12 affidavit;
13 (3) to appoint special
process servers as required to carry out the
14 court trustee's responsibilities under this
section;
15 (4) to enter into
stipulations, acknowledgments, agreements and jour-
16 nal entries, subject to approval of the
court; and
17 (5) to enter into
contracts pursuant to K.S.A. 75-719, and amend-
18 ments thereto, with the attorney general
for the collection of debts owed
19 to courts or restitution owed to
obligees.
20 (d) The court trustee
shall administer the court trustee administered
21 estates.
22 Sec. 34. K.S.A.
59-3202 and K.S.A. 1997 Supp. 23-495 and 23-496
23 are hereby repealed.
24 Sec. 35. This act
shall take effect and be in force from and after
25 January 1, 1999, and its publication in the
statute book.
26
27