59-1405. Order in which assets to be appropriated. The property of a decedent, except as provided in K.S.A. 59-401 and 59-403, shall be liable for the payment of the decedent's debts and other lawful demands against the estate. When a will designates the property to be appropriated for the payment of debts or other items, it shall be applied to such purpose. Unless the will provides otherwise for the payment thereof, or unless the court shall otherwise determine pursuant to K.S.A. 59-1410 the property of the testator, subject to the payment of debts and other items, shall be applied to that purpose in the following order:
(1) Personal property not disposed of by will;
(2) real estate not disposed of by will;
(3) personal property bequeathed to the residuary legatee;
(4) real estate devised to the residuary devisee;
(5) property not specifically bequeathed or devised;
(6) property specifically bequeathed or devised.
Demonstrative legacies shall be classed as specific legacies to the extent of the payment thereof from the fund or property out of which payment is to be made, and as general legacies upon failure or insufficiency of the fund or property out of which payment was to be made to the extent of such insufficiency. The property of each class shall be exhausted before resorting to that of the next class; and all of one class shall contribute ratably if all the property of that class is not required for the payment of such debts or other items.
History: L. 1939, ch. 180, § 103; L. 1941, ch. 284, § 6; L. 1971, ch. 193, § 1; July 1.
Source or prior law:
22-260, 22-261, 22-262, 22-264, 22-810.
Cross References to Related Sections:
Void devise or bequest to witness considered as legacy or devise hereunder, see 59-604.
Law Review and Bar Journal References:
Wills and the federal estate tax and marital deduction, 9 K.L.R. 469, 471 (1961).
Order of appropriating assets to pay debts of the estate somewhat different under proposed Uniform Probate Code, Camilla Klein Haviland, 19 K.L.R. 575, 584 (1971).
"The Ultimate Burden of The Federal Estate Tax in Kansas—A Dilemma for Executors," Austin Nothern and John H. Wachter, 17 W.L.J. 231, 232, 253, 254 (1978).
Attorney General's Opinions:
Transfer of motor vehicle title of decedent; creditors' claims. 87-55.
CASE ANNOTATIONS
1. Probate court's jurisdiction to authorize sale of decedent's realty is limited; statutes construed. Magaw v. Emick, 167 Kan. 580, 585, 207 P.2d 488.
2. Applied; mortgage indebtedness allowed as demand; will construed. In re Estate of Cline, 170 Kan. 496, 500, 227 P.2d 157.
3. Will held not to charge real estate with expenses of administration. In re Estate of Bump, 171 Kan. 442, 448, 449, 233 P.2d 478.
4. When taking under the law a Kansas widow takes one-half of spouse's estate before imposition of federal estate tax. First National Bank of Topeka, Kan., v. United States, 233 F. Supp. 19, 23, 27, 29.
5. Mentioned in construing ambiguous language of will (dissenting opinion). In re Estate of West, 203 Kan. 404, 413, 454 P.2d 462.
6. Absent provision stating otherwise, statutory scheme must be pursued. In re Estate of Graves, 203 Kan. 762, 766, 778, 781, 782, 457 P.2d 71.
7. Cited in construing automobile liability coverage. Government Employees Insurance Company v. Wineteer, 409 F.2d 1333, 1335.
8. Will provided items to be paid from residue; section inapplicable. In re Estate of Barclay, 215 Kan. 129, 138, 523 P.2d 376.
9. Surviving spouse's share of estate qualifying for marital deduction under federal law not required to bear portion of estate tax liability; apportionment of debts and other demands. Jackson v. Jackson, 217 Kan. 448, 449, 451, 453, 454, 455, 456, 536 P.2d 1400.
10. Specific realty devises not to be appropriated for demands against estate until first five classifications hereunder are exhausted. In re Estate of Wernet, 226 Kan. 97, 106, 109, 596 P.2d 137.
11. Cited in authorizing partial distribution prior to final settlement. In re Estate of Kaegi, 3 Kan. App. 2d 440, 442, 596 P.2d 183.
12. Cited; legislature has not declared public policy as to payment of federal estate taxes; equitable apportionment rule followed. Dittmer v. Schmidt, 235 Kan. 697, 702, 683 P.2d 252 (1984).
13. Property subject to debts examined where assets transferred to another estate before payment of debts. In re Tax Appeal of Estate of Kerschen, 13 Kan. App. 2d 370, 373, 771 P.2d 74 (1989).
14. Trial court did not err in ordering will's generation skipping transfer tax be paid from residue and remainder of estate. In re Estate of Tubbs, 21 Kan. App. 2d 395, 402, 900 P.2d 865 (1995).
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