59-2249. Hearing and final decree; real estate; distributive share subject to order of garnishment. (a) On the hearing, unless otherwise ordered, the executor or administrator shall, and other persons may, be examined relative to the account and the distribution of the estate. If all the taxes payable by the estate have been paid so far as there are funds to pay them and the account is correct, it shall be settled and allowed. If the account is incorrect, it shall be corrected and then settled and allowed. Upon settlement and allowance, the court shall determine the heirs, devisees and legatees entitled to the estate and assign it to them by its decree, pursuant to the terms of the will, the laws of intestate succession in effect on the date of the decedent's death or a valid settlement agreement. The decree shall name the heirs, devisees and legatees; describe the property; and state the proportion or part thereof to which each is entitled. The decree shall be binding as to all the estate of the decedent, whether specifically described in the proceedings or not. In the estate of a testate decedent, no heirs need be named in the decree unless they have, as such, an interest in the estate.
(b) When the final decree includes real estate, such decree, or a certified copy of it, may be entered on the transfer record of the county clerk of the proper county. When any such decree which includes real estate shall become final, it shall be the duty of the court to transmit a certified copy of it to the county clerk and the county clerk shall enter it on the transfer record in the clerk's office.
(c) If any person entitled to receive a distributive share of an estate pursuant to a decree hereunder is the defendant in a garnishment action or proceeding in which the executor or administrator of the estate is the garnishee, the person's distributive share shall be subject to the order of garnishment served upon the executor or administrator, and no property or funds of the estate shall be delivered or paid over to the person until further order of the court from which the order of garnishment was issued.
History: L. 1939, ch. 180, § 225; L. 1949, ch. 314, § 1; L. 1972, ch. 222, § 16; L. 1976, ch. 242, § 39; L. 1985, ch. 191, § 39; L. 1989, ch. 174, § 2; L. 1990, ch. 198, § 3; L. 2000, ch. 76, § 4; L. 2010, ch. 44, § 22; July 1.
Source or prior law:
22-739, 22-904, 22-906, 22-925.
Cross References to Related Sections:
County clerk's transfer record, see 58-2239.
Law Review and Bar Journal References:
"A Practical Review of the 1975 Kansas Probate Code Revisions," Philip S. Frick, 44 J.B.A.K. 137, 182 (1975).
CASE ANNOTATIONS
1. Probate court has jurisdiction to distribute estate according to family settlement contract. Erwin v. Erwin, 153 Kan. 703, 708, 113 P.2d 349.
2. Cited; widow required to promptly select and describe land claimed as homestead. Meech v. Grigsby, 153 Kan. 784, 789, 113 P.2d 1091.
3. Discussed in determining probate court's equitable jurisdiction; exclusive jurisdiction. Foss v. Wiles, 155 Kan. 262, 266, 124 P.2d 438.
4. Probate court has exclusive jurisdiction to enforce decedent's oral contract to convey or bequeath real estate. Dixon v. Fluker, 155 Kan. 399, 403, 404, 125 P.2d 364.
5. Final decree of distribution examined and found to conform herewith. In re Estate of Casey, 156 Kan. 590, 593, 595, 134 P.2d 665.
6. Probate judge only person who can limit extent of final settlement hearing. In re Estate of Eyth, 157 Kan. 268, 273, 139 P.2d 378.
7. Conclusive effect of final settlement decree; construction of will; designation of devisees. Bitzer v. Smith, 158 Kan. 83, 87, 145 P.2d 148.
8. Probate court judgment distributing estate cannot be collaterally attacked. Cole v. Thacker, 158 Kan. 242, 251, 146 P.2d 665.
9. Probate court's exclusive, original jurisdiction over decedents' estates and settlements defined. Herbel v. Nuss, 158 Kan. 376, 379, 147 P.2d 735.
10. Probate court has exclusive, original jurisdiction to determine validity of will clause. Asendorf v. Asendorf, 162 Kan. 310, 313, 176 P.2d 535.
11. Probate court has exclusive jurisdiction to distribute estate according to family settlement, when. Down v. Austenfeld, 162 Kan. 562, 565, 178 P.2d 201.
12. Petition to set apart homestead not filed; effect; cotenants' rights; discussed. Cole v. Coons, 162 Kan. 624, 634, 640, 644, 178 P.2d 997.
13. District court without jurisdiction of heir's action to partition real estate, when. Felton v. Rubow, 163 Kan. 82, 84, 179 P.2d 935.
14. Heirs' suit to set aside decedent's deed; probate court's jurisdiction exclusive. Houdashelt v. Sweet, 163 Kan. 97, 101, 180 P.2d 604.
15. Probate court's jurisdiction over final settlement of estate not affected by proviso in K.S.A. 59-2250. Jardon v. Price, 163 Kan. 294, 298, 181 P.2d 469.
16. Decree should define with particularity each estate acquired. Sharpe v. Sharpe, 164 Kan. 484, 485, 190 P.2d 344.
17. Probate court's jurisdiction exclusive to determine title to real estate when proceeding pending. Wetzel v. Wetzel, 167 Kan. 6, 12, 204 P.2d 768.
18. Decedent's daughter's claim to estate based on marriage contract held not a demand; nonclaim statute inapplicable; presentation on final settlement proper; "demand" cases reviewed and distinguished. In re Estate of Welch, 167 Kan. 97, 105, 107, 204 P.2d 714.
19. Objection to final settlement proper to bring uninventoried property into estate. In re Estate of West, 169 Kan. 447, 455, 219 P.2d 418.
20. Decree construing will at final settlement not appealed from; collateral attack denied. Bindley v. Mitchell, 170 Kan. 653, 656, 228 P.2d 689.
21. Finality of unappealed order of final settlement; collateral attack. Jones v. Anderson, 171 Kan. 430, 435, 233 P.2d 483.
22. Proceeding to construe will as precluding determination of matters hereunder mentioned but not determined. In re Estate of Bump, 171 Kan. 442, 447, 233 P.2d 478.
23. Applied in holding judgment of final settlement and distribution not void. In re Estate of Bowman, 172 Kan. 17, 21, 238 P.2d 486.
24. Applied; order delivering property to party having limited estate made pursuant to K.S.A. 59-1506. In re Estate of Cipra, 173 Kan. 330, 333, 246 P.2d 264.
25. Failure to plead final settlement and assignment to petitioner not fatal. In re Estate of Cipra, 173 Kan. 334, 337, 246 P.2d 267.
26. Discussed; court's jurisdiction and decree upheld. In re Estate of Rothrock, 173 Kan. 717, 724, 252 P.2d 598.
27. Order appointing trustee 132 days after judgment of final settlement void, when. In re Estate of Burling, 179 Kan. 687, 695, 298 P.2d 290.
28. Family settlement agreement considered; approval of probate court necessary. Brent v. McDonald, 180 Kan. 142, 152, 153, 300 P.2d 396.
29. Charitable trust; court's duty on final settlement; decree as res judicata. In re Estate of Yetter, 183 Kan. 340, 345, 328 P.2d 738.
30. Petitions for specific performance of contract to make will properly transferred to district court. In re Estate of Teeter, 184 Kan. 567, 568, 569, 337 P.2d 691.
31. Assertion of rights under postnuptial agreement by collateral heirs proper at final settlement. McCormick v. Maddy, 186 Kan. 154, 158, 159, 164, 165, 348 P.2d 1007.
32. Cited; probate court decree construed to give life estate with unrestricted right and power of disposition. Spicer v. United States, 217 F. Supp. 44, 45, 53.
33. Mentioned; life tenant claiming interest after termination of life estate not a party in interest. Hoard v. Shelton, 201 Kan. 145, 150, 439 P.2d 123.
34. Statute construed; no error by trial court in failing to designate property to each of two estates devised. In re Estate of Lehner, 219 Kan. 100, 108, 547 P.2d 365.
35. Final decree did not specify type of remainder interest; collateral attack allowed. McVey v. Pfingston, 3 Kan. App. 2d 276, 277, 593 P.2d 1014.
36. Cited; failure to comply with section; defendant cannot collaterally attack probate court decision by counterclaim to partition action. Adams v. Adams, 4 Kan. App. 2d 1, 4, 602 P.2d 115.
37. Cited; failure to file final accounting (K.S.A. 59-2247) did not deprive court of jurisdiction to order final settlement. In re Estate of Newland, 240 Kan. 249, 254, 730 P.2d 351 (1986).
38. Appeal bond determined unnecessary where controversy is whether quiet title action is proper remedy. In re Estate of Beason, 248 Kan. 803, 806, 811 P.2d 848 (1991).
39. Whether family settlement agreement is unenforceable because of lack of proper acknowledgment and signatures examined. In re Estate of Leathers, 19 Kan. App. 2d 803, 804, 876 P.2d 619 (1994).
40. Family settlement agreement provision directing that decedent's option to purchase property passes to heirs unambiguous. Butts v. Lawrence, 22 Kan. App. 2d 468, 471, 919 P.2d 363 (1996).
41. Cited; Kansas law recognizes the validity of assignments of an expectancy interest. Rector v. Tatham, 287 Kan. 230, 231, 233, 236, 196 P.3d 364 (2008).
|
|