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| Home > Statutes > Usa Arizona |
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USA Statutes : arizona
Title : Trusts, Estates and Protective Proceedings
Chapter : PROBATE OF WILLS AND ADMINISTRATION
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14-3101 Devolution of estate at death; administration on deaths of husband and wife
A. The power of a person to leave property by will, and the rights of creditors,
devisees and heirs to his property are subject to the restrictions and limitations
contained in this title to facilitate the prompt settlement of estates. Upon the death
of a person, his separate property and his share of community property devolves to the
persons to whom the property is devised by his last will, or to those indicated as
substitutes for them in cases involving lapse, renunciation or other circumstances
affecting the devolution of testate estates, or in the absence of testamentary
disposition to his heirs, or to those indicated as substitutes for them in cases
involving renunciation or other circumstances affecting the devolution of intestate
estates. The devolution of separate property and decedent's share of community property
is subject to rights to the allowance in lieu of homestead, exempt property and family
allowance, to rights of creditors and to administration as provided in this title. In
addition, the surviving spouse's share of the community property is subject to
administration until the time for presentation of claims has expired, and thereafter only
to the extent necessary to pay community claims.
B. If a husband and wife both die, and the administration of one of their estates
is not completed prior to commencement of administration of the other, their estates may
be combined in a single administration with the same personal representative, if
feasible. A single application or petition may be made to obtain appointment of a
personal representative and to determine testacy. If their estates devolve as if each
spouse survived the other because of application of section 14-2702, and their estates
are not combined, half of their community property is subject to administration in each
estate and community claims will be charged ratably to each half of the community
property.
14-3102 Necessity of statement or order of probate for will; exception
Except as provided in section 14-3971, to be effective to prove the transfer of any
property or to nominate an executor, a will must be declared to be valid by a statement
of informal probate by the registrar, or an adjudication of probate by the court, except
that a duly executed and unrevoked will which has not been probated may be admitted as
evidence of a devise if both:
1. No court proceeding concerning the succession or administration of the estate
has occurred.
2. Either the devisee or his successors and assigns possessed the property devised
in accordance with the provisions of the will, or the property devised was not possessed
or claimed by anyone by virtue of the decedent's title during the time period for testacy
proceedings.
14-3103 Necessity of appointment for administration
Except as otherwise provided in chapter 4 of this title, to acquire the powers and
undertake the duties and liabilities of a personal representative of a decedent, a person
shall be appointed by order of the court or statement of the registrar, shall qualify and
shall be issued letters. Administration of an estate is commenced by the issuance of
letters.
14-3104 Claims against decedent; necessity of administration
No proceeding to enforce a claim against the estate of a decedent or his successors
may be revived or commenced before the appointment of a personal representative. After
the appointment and until distribution, all proceedings and actions to enforce a claim
against the estate are governed by the procedure prescribed by this chapter. After
distribution a creditor whose claim has not been barred may recover from the distributees
as provided in section 14-3934 or from a former personal representative individually
liable as provided in section 14-3935. This section has no application to a proceeding
by a secured creditor of the decedent to enforce his right to his security except as to
any deficiency judgment which might be sought therein.
14-3105 Proceedings affecting devolution and administration; jurisdiction of subject matter
A. Persons interested in decedents' estates may apply to the registrar for
determination in the informal proceedings provided in this chapter and may petition the
court for orders in formal proceedings within the court's jurisdiction including but not
limited to those described in this article.
B. The court may hear and determine any matter affecting the administration and
distribution of decedents' estates after notice to interested persons in conformity with
section 14-1401 and only in a formal proceeding. Persons notified are bound though less
than all interested persons may have been given notice.
C. The court has general jurisdiction that it may exercise in a formal proceeding
in any other action or proceeding concerning succession or to which an estate, through a
personal representative, may be a party, including:
1. Actions to determine title or to quiet title to property alleged to belong to
the estate.
2. Actions for personal injury and wrongful death.
3. Actions to quiet title of property that belongs to the estate.
4. Actions against third parties to recover estate assets.
5. Any action or proceeding in which property distributed by a personal
representative or its value is sought to be subjected to rights of creditors or
successors of the decedent.
14-3107 Scope of proceedings; proceedings independent; exception
Unless supervised administration as described in article 5 is involved:
1. Each proceeding before the court or registrar is independent of any other
proceeding involving the same estate.
2. Petitions for formal orders of the court may combine various requests for relief
in a single proceeding if the orders sought may be finally granted without delay. Except
as required for proceedings which are particularly described by other sections of this
chapter, no petition is defective because it fails to embrace all matters which might
then be the subject of a final order.
3. Proceedings for probate of wills or adjudications of no will may be combined
with proceedings for appointment of personal representatives.
4. A proceeding for appointment of a personal representative is concluded by an
order making or declining the appointment.
14-3108 Probate, testacy and appointment proceedings; ultimate time limit
An informal probate or appointment proceeding or formal testacy or appointment
proceeding, other than a proceeding to probate a will previously probated at the
testator's domicile and appointment proceedings relating to an estate in which there has
been a prior appointment, shall not be commenced more than two years after the decedent's
death, except:
1. If a previous proceeding was dismissed because of doubt about the fact of the
decedent's death, appropriate probate, appointment or testacy proceedings may be
maintained at any time thereafter upon a finding that the decedent's death occurred prior
to the initiation of the previous proceeding and the applicant or petitioner has not
delayed unduly in initiating the subsequent proceeding.
2. Appropriate probate, appointment or testacy proceedings may be maintained in
relation to the estate of an absent, disappeared or missing person for whose estate a
conservator has been appointed, at any time within two years after the conservator
becomes able to establish the death of the protected person.
3. A proceeding to contest an informally probated will and to secure appointment of
the person with legal priority for appointment in the event the contest is successful may
be commenced within the later of twelve months from the informal probate or two years
from the decedent's death.
4. An informal probate or appointment or a formal testacy or appointment proceeding
may be commenced thereafter if no court proceeding concerning the succession or
administration has occurred within the two year period. If proceedings are brought under
this exception, the personal representative has no right to possess estate assets as
provided in section 14-3709 beyond that necessary to confirm title thereto in the
rightful successors to the estate. Claims other than expenses of administration shall not
be presented against the estate.
These limitations do not apply to proceedings to construe probated wills or determine
heirs of an intestate. In cases under paragraph 1 or 2 of this section, the date on
which a testacy or appointment proceeding is properly commenced shall be deemed to be the
date of the decedent's death for purposes of other limitations provisions of this title
which relate to the date of death.
14-3109 Statutes of limitation on decedent's cause of action
Upon the death of a person in whose favor there is a cause of action which has not
been barred as of the date of his death, the limitation of the action ceases to run until
a personal representative is appointed or until twelve months after the death, whichever
first occurs, but shall not bar such action sooner than four months after death even if a
personal representative is appointed earlier.
14-3110 Action by or against personal representative; survival of causes of action
Every cause of action, except a cause of action for damages for breach of promise to
marry, seduction, libel, slander, separate maintenance, alimony, loss of consortium or
invasion of the right of privacy, shall survive the death of the person entitled thereto
or liable therefor, and may be asserted by or against the personal representative of such
person, provided that upon the death of the person injured, damages for pain and
suffering of such injured person shall not be allowed.
14-3201 Venue for first and subsequent estate proceedings; location of property
A. Venue for the first informal or formal testacy or appointment proceedings after
a decedent's death is:
1. In the county where the decedent had his domicile at the time of his death.
2. If the decedent was not domiciled in this state, in any county where property of
the decedent was located at the time of his death.
B. Venue for all subsequent proceedings within the exclusive jurisdiction of the
court is in the place where the initial proceeding occurred, unless the initial
proceeding has been transferred as provided in section 14-1303 or subsection C of this
section.
C. If the first proceeding was informal, on application of an interested person and
after notice to the proponent in the first proceeding, the court, upon finding that venue
is elsewhere, may transfer the proceeding and the file to the other court.
D. For the purpose of aiding determinations concerning location of assets which may
be relevant in cases involving non-domiciliaries, a debt, other than one evidenced by
investment or commercial paper or other instrument in favor of a non-domiciliary, is
located where the debtor resides, or if the debtor is a person other than an individual,
at the place where it has its principal office. Commercial paper, investment paper and
other instruments are located where the instrument is. An interest in property held in
trust is located where the trustee may be sued.
14-3202 Appointment or testacy proceedings; conflicting claim of domicile in another state
If conflicting claims as to the domicile of a decedent are made in a formal testacy
or appointment proceeding commenced in this state, and in a testacy or appointment
proceeding after notice pending at the same time in another state, the court of this
state must stay, dismiss or permit suitable amendment in, the proceeding here unless it
is determined that the local proceeding was commenced before the proceeding
elsewhere. The determination of domicile in the proceeding first commenced must be
accepted as determinative in the formal testacy or appointment proceeding in this state.
14-3203 Priority among persons seeking appointment as personal representative
A. Whether the proceedings are formal or informal, persons who are not disqualified
have priority for appointment in the following order:
1. The person with priority as determined by a probated will including a person
nominated by a power conferred in a will.
2. The surviving spouse of the decedent who is a devisee of the decedent.
3. Other devisees of the decedent.
4. The surviving spouse of the decedent.
5. Other heirs of the decedent.
6. If the decedent was a veteran or the spouse or child of a veteran, the
department of veterans' services.
7. Forty-five days after the death of the decedent, any creditor.
8. The public fiduciary.
B. An objection to an appointment can be made only in formal proceedings. In case
of objection the priorities stated in subsection A of this section apply, except that:
1. If the estate appears to be more than adequate to meet exemptions and costs of
administration but inadequate to discharge anticipated unsecured claims, the court, on
petition of creditors, may appoint any qualified person.
2. In case of objection to appointment of a surviving spouse, other than one whose
priority is determined by will, by an heir or devisee appearing to have a substantial
interest in the estate, and the surviving spouse is found by the court to be unsuitable,
the court may appoint a person who is acceptable to heirs and devisees, whose interests
in the estate appear to be worth in total more than half of the probable distributable
value or, in default of this accord, any suitable person.
3. In case of objection to appointment of a person who is not a surviving spouse,
other than one whose priority is determined by will, by an heir or devisee appearing to
have a substantial interest in the estate, the court may appoint a person who is
acceptable to heirs and devisees whose interests in the estate appear to be worth in
total more than half of the probable distributable value, or, in default of this accord
any suitable person.
C. A person entitled to letters under subsection A, paragraphs 2 through 5 of this
section and a person age fourteen and over who would be entitled to letters but for the
person's age may nominate a qualified person to act as personal representative. Any
person age eighteen and over may renounce the person's right to nominate or to an
appointment by appropriate writing filed with the court. If two or more persons share a
priority, those of them who do not renounce must concur in nominating another to act for
them, or in applying for appointment.
D. Conservators of the estates of protected persons, or if there is no conservator,
any guardian except a guardian ad litem of a minor or incapacitated person, may exercise
the same right to nominate, to object to another's appointment, or to participate in
determining the preference of a majority in interest of the heirs and devisees that the
protected person or ward would have if qualified for appointment.
E. Formal proceedings are required to appoint a personal representative in any of
the following situations:
1. If there is a person with a higher order of priority who has not renounced or
waived the person's right by appropriate writing filed with the court.
2. If a priority is shared by two or more persons, as devisees under subsection A,
paragraph 3 of this section, or as heirs under subsection A, paragraph 5 of this section,
and one or more of them has not renounced or concurred in nominating the person whose
appointment is applied for.
3. If appointment is sought for a person who does not have any priority under this
section, under this paragraph the court shall determine that those having priority do not
object to the appointment, and that administration is necessary.
F. A person is not qualified to serve as a personal representative who is:
1. Under the age of majority as defined in section 1-215.
2. A person whom the court finds unsuitable in formal proceedings.
3. A foreign corporation.
G. A personal representative appointed by a court of the decedent's domicile has
priority over all other persons except if the decedent's will nominates different persons
to be personal representative in this state and in the state of domicile. The
domiciliary personal representative may nominate another, who shall have the same
priority as the domiciliary personal representative.
H. This section governs priority for appointment of a successor personal
representative but does not apply to the selection of a special administrator.
14-3204 Demand for notice of order or filing concerning decedent's estate
Any person desiring notice of any order or filing pertaining to a decedent's estate
in which he has a financial or property interest may file a demand for notice with the
court at any time after the death of the decedent stating the name of the decedent, the
nature of his interest in the estate and the demandant's address or that of his
attorney. The demandant shall mail a copy of the demand to the personal representative
if one has been appointed. After filing of a demand, no order or filing to which the
demand relates shall be made or accepted without notice as prescribed in section 14-1401
to the demandant or his attorney. The validity of an order which is issued or filing
which is accepted without compliance with this requirement shall not be affected by the
error, but the petitioner receiving the order or the person making the filing may be
liable for any damage caused by the absence of notice. The requirement of notice arising
from a demand under this provision may be waived in writing by the demandant and shall
cease upon the termination of his interest in the estate.
14-3301 Informal probate or appointment proceedings; application; contents
A. Informal probate or informal appointment may be made only by application of one
of the following:
1. The surviving spouse of the decedent.
2. An adult child, a parent, a brother or a sister of the decedent.
3. A person who is an heir of the decedent.
4. A person nominated as a personal representative by a probated will or the will
for which probate is asked or pursuant to a power conferred by the will.
5. If the decedent was a nonresident, any person who is qualified under paragraphs
1 through 4 of this subsection or a personal representative appointed in the state of
domicile or the nominee of such personal representative.
6. If the decedent was a veteran, the department of veterans' services.
7. Forty-five days after the death of the decedent, any creditor.
8. If no person is qualified and willing to serve as personal representative under
paragraphs 1 through 7 of this subsection, the public fiduciary.
B. Applications for informal probate or informal appointment shall be directed to
the registrar, and verified by the applicant to be accurate and complete to the best of
the applicant's knowledge and belief as to the following information:
1. Every application for informal probate of a will or for informal appointment of
a personal representative, other than a special or successor representative, shall
contain the following:
(a) A statement of the interest of the applicant.
(b) The name and date of death of the decedent, the decedent's age, the county and
state of the decedent's domicile at the time of death, the names and addresses of the
spouse, children, heirs and devisees and the ages of any who are minors as far as known
or ascertainable with reasonable diligence by the applicant.
(c) If the decedent was not domiciled in the state at the time of the decedent's
death, a statement showing venue.
(d) A statement identifying and indicating the address of any personal
representative of the decedent who is appointed in this state or elsewhere and whose
appointment has not been terminated.
(e) A statement indicating whether the applicant has received a demand for notice,
or is aware of any demand for notice, of any probate or appointment proceeding concerning
the decedent that may have been filed in this state or elsewhere.
(f) A statement that the time limit for informal probate or appointment as provided
in this chapter has not expired either because two years or less have passed since the
decedent's death, or, if more than two years from death have passed, that circumstances
as described by section 14-3108 authorizing tardy probate or appointment have occurred.
2. An application for informal probate of a will shall state the following in
addition to the statements required by paragraph 1 of this subsection:
(a) That the original of the decedent's last will is in the possession of the
court, or accompanies the application, or that a certified copy of a will probated in
another jurisdiction accompanies the application.
(b) That the applicant, to the best of the applicant's knowledge, believes the will
to have been validly executed.
(c) That, after the exercise of reasonable diligence, the applicant is unaware of
any instrument revoking the will, and that the applicant believes that the instrument
that is the subject of the application is the decedent's last will.
3. An application for informal appointment of a personal representative to
administer an estate under a will shall describe the will by date of execution and state
the time and place of probate or the pending application or petition for probate. The
application for appointment shall adopt the statements in the application or petition for
probate and state the name, address and priority for appointment of the person whose
appointment is sought.
4. An application for informal appointment of an administrator in intestacy shall
state in addition to the statements required by paragraph 1 of this subsection:
(a) That, after the exercise of reasonable diligence, the applicant is unaware of
any unrevoked testamentary instrument relating to property having a situs in this state
under section 14-1301 or a statement why any such instrument of which the applicant may
be aware is not being probated.
(b) The priority of the person whose appointment is sought and the names of any
other persons having a prior or equal right to the appointment under section 14-3203.
5. An application for appointment of a personal representative to succeed a
personal representative appointed under a different testacy status shall refer to the
order in the most recent testacy proceeding, state the name and address of both the
person whose appointment is sought and of the person whose appointment will be terminated
if the application is granted, and describe the priority of the applicant.
6. An application for appointment of a personal representative to succeed a
personal representative who has tendered a resignation as provided in section 14-3610,
subsection C, or whose appointment has been terminated by death, appointment of a
conservator or removal, shall adopt the statements in the application or petition which
led to the appointment of the person being succeeded except as specifically changed or
corrected, state the name and address of the person who seeks appointment as successor
and describe the priority of the applicant.
C. By verifying an application for informal probate, or informal appointment, the
applicant submits personally to the jurisdiction of the court in any proceeding for
relief from fraud relating to the application, or for perjury, that may be instituted
against the applicant.
14-3302 Informal probate; duty of registrar; effect of informal probate
Upon receipt of an application requesting informal probate of a will, the registrar,
upon making the findings required by section 14-3303 shall issue a written statement of
informal probate if at least one hundred twenty hours have elapsed since the decedent's
death. Informal probate is conclusive as to all persons until superseded by an order in
a formal testacy proceeding. No defect in the application or procedure relating thereto
which leads to informal probate of a will renders the probate void.
14-3303 Informal probate; proof and findings required
A. In an informal proceeding for original probate of a will, the registrar shall
determine whether:
1. The application is complete.
2. The applicant has made oath or affirmation that the statements contained in the
application are true to the best of his knowledge and belief.
3. The applicant appears from the application to be a person permitted to apply as
provided in section 14-3301, subsection A.
4. On the basis of the statements in the application, venue is proper.
5. An original, duly executed and apparently unrevoked will is in the registrar's
possession.
6. Any notice required by section 14-3204 has been given and that the application
is not within section 14-3304.
7. It appears from the application that the time limit for original probate has not
expired.
B. The application shall be denied if it indicates that a personal representative
has been appointed in another county of this state or except as provided in subsection D
of this section, if it appears that this or another will of the decedent has been the
subject of a previous probate order.
C. A will which appears to have the required signatures and which contains an
attestation clause showing that requirements of execution under chapter 2, article 5 of
this title have been met shall be probated without further proof. In other cases, the
registrar may assume execution if the will appears to have been properly executed, or he
may accept a sworn statement or affidavit of any person having knowledge of the
circumstances of execution, whether or not the person was a witness to the will.
D. Informal probate of a will which has been previously probated in another
jurisdiction may be granted at any time upon written application by any interested
person, together with deposit of a certified copy of the will and of the statement
probating it from the office or court where it was first probated.
E. A will from a place which does not provide for probate of a will after death and
which is not eligible for probate under subsection A of this section may be probated in
this state upon receipt by the registrar of a duly authenticated copy of the will and a
duly authenticated certificate of its legal custodian that the copy filed is a true copy
and that the will has become operative under the law of the other place.
14-3304 Informal probate; unavailable in certain cases
An application for informal probate shall be declined if it relates to one or more
of a known series of testamentary instruments the latest of which does not expressly
revoke the earlier, except that a series consisting of a will with its codicils may be
informally probated.
14-3305 Informal probate; registrar not satisfied
If the registrar is not satisfied that a will is entitled to be probated in informal
proceedings because of failure to meet the requirements of sections 14-3303 and 14-3304
or any other reason, he may decline the application. A declination of informal probate
is not an adjudication and does not preclude formal probate proceedings.
14-3306 Informal probate; notice requirements
A. The applicant must give notice as described by section 14-1401 of the
applicant's application for informal probate:
1. To any person demanding it pursuant to section 14-3204.
2. To any personal representative of the decedent whose appointment has not been
terminated. No other notice need be given prior to issuance of a statement of informal
probate by the registrar.
B. On issuance of a statement of informal probate, the applicant must within thirty
days give written information to all heirs and devisees of the admission of the will to
probate, together with a copy of the will. The information shall describe the court where
papers relating to the estate are on file and state that an heir has four months from
receipt of the information within which to commence a formal testacy proceeding if the
heir wishes to contest the probate. If a personal representative has been appointed, the
information given pursuant to this section may be combined with the information required
by section 14-3705 and may in that case be given by either the applicant or the personal
representative on behalf of both. This information shall be delivered or sent by mail to
each of the heirs and devisees whose address is reasonably available to the applicant. An
heir to whom the information is given is barred from commencing a formal testacy
proceeding to contest the probate of the will after four months have elapsed from receipt
of the information, but an heir is not barred from commencing a formal testacy proceeding
to probate a later discovered will. An heir to whom the information is not given may
contest the informal probate within the time limit specified in section 14-3108. The
applicant shall be liable to any heir or devisee damaged by failure to comply with this
subsection. An applicant's failure to give information as required by this section is a
breach of the applicant's duty to the heirs and devisees but does not affect the validity
of the probate.
14-3307 Informal appointment proceedings; delay in order; duty of registrar; effect of appointment
A. Upon receipt of an application for informal appointment of a personal
representative other than a special administrator as provided in section 14-3614, if at
least one hundred twenty hours have elapsed since the decedent's death, the registrar,
after making the findings required by section 14-3308, shall appoint the applicant
subject to qualification and acceptance, except that if the decedent was a nonresident
the registrar shall delay the order of appointment until thirty days have elapsed since
death unless the personal representative appointed at the decedent's domicile is the
applicant or the decedent's will directs that his estate be subject to the laws of this
state.
B. The status of personal representative and the powers and duties pertaining to
the office are fully established by informal appointment. An appointment, and the office
of personal representative created thereby, is subject to termination as provided in
sections 14-3608 through 14-3612, but is not subject to retroactive vacation.
14-3308 Informal appointment proceedings; proof and findings required
A. In informal appointment proceedings, the registrar must determine whether:
1. The application for informal appointment of a personal representative is
complete.
2. The applicant has made oath or affirmation that the statements contained in the
application are true to the best of his knowledge and belief.
3. The applicant appears from the application to be a person permitted to apply as
provided in section 14-3301, subsection A.
4. On the basis of the statements in the application, venue is proper.
5. Any will to which the requested appointment relates has been or is being
simultaneously formally or informally probated, except this requirement does not apply to
the appointment of a special administrator.
6. Any notice required by section 14-3204 has been given.
7. From the statements in the application, the person whose appointment is sought
has priority entitling him to the appointment.
8. The will, if any, requires supervised administration.
B. Unless section 14-3612 controls, the application must be denied if it indicates
any of the following:
1. A personal representative who has not filed a written statement of resignation
as provided in section 14-3610, subsection C has been appointed in this or another county
of this state.
2. The decedent was not domiciled in this state, a personal representative whose
appointment has not been terminated has been appointed by a court in the state of
domicile and the applicant is not the domiciliary personal representative or his nominee.
3. Other requirements of this section have not been met.
14-3309 Informal appointment proceedings; registrar not satisfied
If the registrar is not satisfied that a requested informal appointment of a
personal representative should be made because of failure to meet the requirements of
sections 14-3307 and 14-3308, or for any other reason, the registrar may decline the
application. A declination of informal appointment is not an adjudication and does not
preclude appointment in formal proceedings.
14-3310 Informal appointment proceedings; notice requirements
The moving party must give notice as described by section 14-1401 of his intention
to seek an appointment informally:
1. To any person demanding it pursuant to section 14-3204.
2. To any person having a prior or equal right to appointment not waived in writing
and filed with the court. No other notice of an informal appointment proceeding is
required.
14-3311 Informal appointment unavailable in certain cases
If an application for informal appointment indicates the existence of a possible
unrevoked testamentary instrument which may relate to property subject to the laws of
this state, and which is not filed for probate in this court, the registrar shall decline
the application.
14-3401 Formal testacy proceedings; nature; when commenced
A. A formal testacy proceeding is litigation to determine whether a decedent left a
valid will. A formal testacy proceeding may be commenced by an interested person filing
a petition as described in section 14-3402, subsection A in which he requests that the
court, after notice and hearing, enter an order probating a will, or a petition to set
aside an informal probate of a will or to prevent informal probate of a will which is the
subject of a pending application, or a petition in accordance with section 14-3402,
subsection B for an order that the decedent died intestate.
B. A petition may seek formal probate of a will without regard to whether the same
or a conflicting will has been informally probated. A formal testacy proceeding may
involve a request for appointment of a personal representative.
C. During the pendency of a formal testacy proceeding, the registrar shall not act
upon any application for informal probate of any will of the decedent or any application
for informal appointment of a personal representative of the decedent.
D. Unless a petition in a formal testacy proceeding also requests confirmation of
the previous informal appointment, a previously appointed personal representative, after
receipt of notice of the commencement of a formal probate proceeding, must refrain from
exercising his power to make any further distribution of the estate during the pendency
of the formal proceeding. A petitioner who seeks the appointment of a different personal
representative in a formal proceeding also may request an order restraining the acting
personal representative from exercising any of the powers of his office and requesting
the appointment of a special administrator. In the absence of a request or if the
request is denied, the commencement of a formal proceeding has no effect on the powers
and duties of a previously appointed personal representative other than those relating to
distribution.
14-3402 Formal testacy or appointment proceedings; petition; contents
A. Petitions for formal probate of a will, or for adjudication of intestacy with or
without request for appointment of a personal representative, must be directed to the
court, request a judicial order after notice and hearing and contain further statements
as indicated in this section. A petition for formal probate of a will must:
1. Request an order as to the testacy of the decedent in relation to a particular
instrument which may or may not have been informally probated and determining the heirs;
2. Contain the statements required for informal applications as stated in paragraph
1 of subsection B of section 14-3301 and the statements required by subdivisions (b) and
(c), paragraph 2 of subsection B of section 14-3301; and
3. State whether the original of the last will of the decedent is in the possession
of the court or accompanies the petition. If the original will or a certified copy of a
will probated in another jurisdiction neither is in the possession of the court nor
accompanies the petition, the petition also must state the contents of the will, and
indicate that it is lost, destroyed or otherwise unavailable.
B. A petition for adjudication of intestacy and appointment of an administrator in
intestacy must request a judicial finding and order that the decedent left no will and
determining the heirs, contain the statements required by paragraphs 1 and 4 of
subsection B of section 14-3301 and indicate whether supervised administration is
sought. A petition may request an order determining intestacy and heirs without
requesting the appointment of an administrator, in which case, the statements required by
subdivision (b), paragraph 4 of subsection B of section 14-3301 may be omitted.
14-3403 Formal testacy proceeding; notice of hearing on petition
A. Upon commencement of a formal testacy proceeding, the clerk shall fix a time and
place of hearing. Notice shall be given in the manner prescribed by section 14-1401 by
the petitioner to the persons specified in this section and to any additional person who
has filed a demand for notice under section 14-3204. Notice shall be given to the
following persons: the surviving spouse, children and other heirs of the decedent, the
devisees and executors named in any will that is being, or has been, probated, or offered
for informal or formal probate in the county, or that is known by the petitioner to have
been probated, or offered for informal or formal probate in another jurisdiction, and any
personal representative of the decedent whose appointment has not been
terminated. Notice may be given to other persons. In addition, the petitioner shall
give notice by publication one time at least fourteen days before the hearing to all
unknown persons and to all known persons whose addresses are unknown who have any
interest in the matter being litigated.
B. If it appears by the petition or otherwise that the fact of the death of the
alleged decedent may be in doubt, or on the written demand of any interested person, a
copy of the notice of the hearing on the petition shall be sent by registered mail to the
alleged decedent at his last known address. The court shall direct the petitioner to
report the results of, or make and report back concerning, a reasonably diligent search
for the alleged decedent in any manner that may seem advisable, including any or all of
the following methods:
1. By inserting in one or more suitable periodicals a notice requesting information
from any person having knowledge of the whereabouts of the alleged decedent.
2. By notifying law enforcement officials and public welfare agencies in
appropriate locations of the disappearance of the alleged decedent.
3. By engaging the services of an investigator. The costs of any search so directed
shall be paid by the petitioner if there is no administration or by the estate of the
decedent in case there is administration.
14-3404 Formal testacy proceedings; written objections to probate
Any party to a formal proceeding who opposes the probate of a will for any reason
shall state in his pleadings his objections to probate of the will.
14-3405 Formal testacy proceedings; uncontested cases; hearings and proof
If a petition in a testacy proceeding is unopposed, the court may order probate or
intestacy on the strength of the pleadings if satisfied that the conditions of section
14-3409 have been met, or conduct a hearing in open court and require proof of the
matters necessary to support the order sought. If evidence concerning execution of the
will is necessary, the affidavit or testimony of one of any attesting witnesses to the
instrument is sufficient. If the affidavit or testimony of an attesting witness is not
available, execution of the will may be proved by other evidence or affidavit.
14-3406 Formal testacy proceedings; contested cases; testimony of attesting witnesses
A. If evidence concerning execution of an attested will which is not self-proved is
necessary in contested cases, the testimony of at least one of the attesting witnesses,
if within the state, competent and able to testify, is required. Due execution of an
attested or unattested will may be proved by other evidence.
B. If the will is self-proved, compliance with signature requirements for execution
is conclusively presumed and other requirements of execution are presumed subject to
rebuttal without the testimony of any witness upon filing the will and the acknowledgment
and affidavits annexed or attached thereto, unless there is proof of fraud or forgery
affecting the acknowledgment or affidavit.
14-3407 Formal testacy proceedings; burdens in contested cases
In contested cases, petitioners who seek to establish intestacy have the burden of
establishing prima facie proof of death, venue and heirship. Proponents of a will have
the burden of establishing prima facie proof of due execution in all cases, and if they
are also petitioners, prima facie proof of death and venue. Contestants of a will have
the burden of establishing lack of testamentary intent or capacity, undue influence,
fraud, duress, mistake or revocation. Parties have the ultimate burden of persuasion as
to matters with respect to which they have the initial burden of proof. If a will is
opposed by the petition for probate of a later will revoking the former, it shall be
determined first whether the later will is entitled to probate, and if a will is opposed
by a petition for a declaration of intestacy, it shall be determined first whether the
will is entitled to probate.
14-3408 Formal testacy proceedings; will construction; effect of final order in another jurisdiction
A final order of a court of another state determining testacy, the validity or
construction of a will, made in a proceeding involving notice to and an opportunity for
contest by all interested persons must be accepted as determinative by the courts of this
state if it includes, or is based upon, a finding that the decedent was domiciled at his
death in the state where the order was made.
14-3409 Formal testacy proceedings; order; foreign will
After the time required for any notice has expired, upon proof of notice, and after
any hearing that may be necessary, if the court finds that the testator is dead, venue is
proper and that the proceeding was commenced within the limitation prescribed by section
14-3108, it shall determine the decedent's domicile at death, his heirs and his state of
testacy. Any will found to be valid and unrevoked shall be formally
probated. Termination of any previous informal appointment of a personal representative,
which may be appropriate in view of the relief requested and findings, is governed by
section 14-3612. The petition shall be dismissed or appropriate amendment allowed if the
court is not satisfied that the alleged decedent is dead. A will from a place which does
not provide for probate of a will after death, may be proved for probate in this state by
a duly authenticated certificate of its legal custodian that the copy introduced is a
true copy and that the will has become effective under the law of the other place.
14-3410 Formal testacy proceedings; probate of more than one instrument
If two or more instruments are offered for probate before a final order is entered
in a formal testacy proceeding, more than one instrument may be probated if neither
expressly revokes the other or contains provisions which work a total revocation by
implication. If more than one instrument is probated, the order shall indicate what
provisions control in respect to the nomination of an executor, if any. The order may,
but need not, indicate how any provisions of a particular instrument are affected by the
other instrument. After a final order in a testacy proceeding has been entered, no
petition for probate of any other instrument of the decedent may be entertained, except
incident to a petition to vacate or modify a previous probate order and subject to the
time limits of section 14-3412.
14-3411 Formal testacy proceedings; partial intestacy
If it becomes evident in the course of a formal testacy proceeding that, though one
or more instruments are entitled to be probated, the decedent's estate is or may be
partially intestate, the court shall enter an order to that effect.
14-3412 Formal testacy proceedings; effect of order; vacation
A. Subject to appeal and subject to vacation as provided in this section and in
section 14-3413, a formal testacy order under sections 14-3409 through 14-3411, including
an order that the decedent left no valid will and determining heirs, is final as to all
persons with respect to all issues concerning the decedent's estate that the court
considered or might have considered incident to its rendition relevant to the question of
whether the decedent left a valid will, and to the determination of heirs, except that:
1. Not later than sixty days after entry of a formal testacy order probating a will
or a formal adjudication of intestacy, any interested person who did not oppose the
probate of the will or the allegations of intestacy at the original hearing may petition
the court to vacate its order and reopen the matter; the court shall thereupon fix a time
and place of hearing, with notice to the heirs, the devisees named in the will, the
personal representative, and other persons as directed by the court. The court shall
proceed as in any contested testacy case; the court may vacate the original order and
make a new order determining the decedent's state of testacy, or deny the petition to
vacate and confirm the original order.
2. The court shall entertain a petition for modification or vacation of its order
and probate of another will of the decedent if it is shown that the proponents of the
later-offered will were unaware of its existence at the time of the earlier proceeding or
were unaware of the earlier proceeding and were given no notice thereof, except by
publication.
3. If intestacy of all or part of the estate has been ordered, the determination of
heirs of the decedent may be reconsidered if it is shown that one or more persons were
omitted from the determination and it is also shown that the persons were unaware of
their relationship to the decedent, were unaware of his death or were given no notice of
any proceeding concerning his estate, except by publication.
4. A petition for vacation under either paragraph 2 or 3 of this subsection must be
filed prior to the earlier of the following time limits:
(a) If a personal representative has been appointed for the estate, the time of
entry of any order approving final distribution of the estate, or, if the estate is
closed by statement, six months after the filing of the closing statement.
(b) Whether or not a personal representative has been appointed for the estate of
the decedent, the time prescribed by section 14-3108 when it is no longer possible to
initiate an original proceeding to probate a will of the decedent.
(c) Twelve months after the entry of the order sought to be vacated.
5. The order originally rendered in the testacy proceeding may be modified or
vacated, if appropriate under the circumstances, by the order of probate of the
later-offered will or the order redetermining heirs.
6. The finding of the fact of death is conclusive as to the alleged decedent only
if notice of the hearing on the petition in the formal testacy proceeding was sent by
registered or certified mail addressed to the alleged decedent at his last known address
and the court finds that a search under section 14-3403, subsection B was made.
B. If the alleged decedent is not dead, even if notice was sent and search was
made, he may recover estate assets in the hands of the personal representative. In
addition to any remedies available to the alleged decedent by reason of any fraud or
intentional wrongdoing, the alleged decedent may recover any estate or its proceeds from
distributees that is in their hands, or the value of distributions received by them, to
the extent that any recovery from distributees is equitable in view of the circumstances.
14-3413 Formal testacy proceedings; vacation of order for other cause
For good cause shown, an order in a formal testacy proceeding may be modified or
vacated within the time allowed for appeal.
14-3414 Formal proceedings concerning appointment of personal representative
A. A formal proceeding for adjudication regarding the priority or qualification of
one who is an applicant for appointment as personal representative, or of one who
previously has been appointed personal representative in informal proceedings, if an
issue concerning the testacy of the decedent is or may be involved, is governed by
section 14-3402, as well as by this section. In other cases, the petition shall contain
or adopt the statements required by section 14-3301, subsection B, paragraph 1 and
describe the question relating to priority or qualification of the personal
representative which is to be resolved. If the proceeding precedes any appointment of a
personal representative, it shall stay any pending informal appointment proceedings as
well as any commenced thereafter. If the proceeding is commenced after appointment, the
previously appointed personal representative, after receipt of notice thereof, shall
refrain from exercising any power of administration except as necessary to preserve the
estate or unless the court orders otherwise.
B. After notice to interested persons, including all persons interested in the
administration of the estate as successors under the applicable assumption concerning
testacy, any previously appointed personal representative and any person having or
claiming priority for appointment as personal representative, the court shall determine
who is entitled to appointment under section 14-3203, make a proper appointment and, if
appropriate, terminate any prior appointment found to have been improper as provided in
cases of removal under section 14-3611.
14-3415 Lost and missing wills; wills probated in other jurisdictions
A. If an original will that was last seen in the possession of the testator cannot
be found after the testator's death, the testator is presumed to have destroyed the will
with the intention of revoking it. This presumption may be rebutted by a preponderance
of the evidence. If this presumption arises and is not rebutted the will is revoked.
B. If a will is found to be valid and unrevoked and the original will is not
available, its contents can be proved by a copy of the will and the testimony of at least
one credible witness that the copy is a true copy of the original. It is not necessary
for this person to be an attesting witness to the will.
C. If a will is found to be valid and unrevoked and a copy of the will is not
available, its contents can be proved only by clear and convincing evidence. For this
purpose it is not necessary for a witness to be an attesting witness to the will. On a
finding of clear and convincing evidence of the contents of such a will, the court, by
order, shall set forth the contents of the will in reasonable detail.
D. If a certified copy of the will, as probated in another jurisdiction, is not
available, the contents of the will can be proved by a copy of the will and the testimony
of at least one credible witness that the copy is a true copy of the original, as
probated in the other jurisdiction. It is not necessary for this person to be an
attesting witness to the will.
14-3501 Supervised administration; nature of proceeding
Supervised administration is a single in rem proceeding to secure complete
administration and settlement of a decedent's estate under the continuing authority of
the court which extends until entry of an order approving distribution of the estate and
discharging the personal representative or other order terminating the proceeding. A
supervised personal representative is responsible to the court, as well as to the
interested parties, and is subject to directions concerning the estate made by the court
on its own motion or on the motion of any interested party. Except as otherwise provided
in this article, or as otherwise ordered by the court, a supervised personal
representative has the same duties and powers as a personal representative who is not
supervised.
14-3502 Supervised administration; petition; order
A petition for supervised administration may be filed by any interested person or by
a personal representative at any time or the prayer for supervised administration may be
joined with a petition in a testacy or appointment proceeding. If the testacy of the
decedent and the priority and qualification of any personal representative have not been
adjudicated previously, the petition for supervised administration shall include the
matters required of a petition in a formal testacy proceeding and the notice requirements
and procedures applicable to a formal testacy proceeding apply. If not previously
adjudicated, the court shall adjudicate the testacy of the decedent and questions
relating to the priority and qualifications of the personal representative in any case
involving a request for supervised administration, even though the request for supervised
administration may be denied. After notice to interested persons, the court shall order
supervised administration of a decedent's estate:
1. If the decedent's will directs supervised administration, it shall be ordered
unless the court finds that circumstances bearing on the need for supervised
administration have changed since the execution of the will and that there is no
necessity for supervised administration.
2. If the decedent's will directs unsupervised administration, supervised
administration shall be ordered only upon a finding that it is necessary for protection
of persons interested in the estate.
3. In other cases if the court finds that supervised administration is necessary
under the circumstances.
14-3503 Supervised administration; effect on other proceedings
A. The pendency of a proceeding for supervised administration of a decedent's
estate stays action on any informal application then pending or thereafter filed.
B. If a will has been previously probated in informal proceedings, the effect of
the filing of a petition for supervised administration is as provided for formal testacy
proceedings by section 14-3401.
C. After he has received notice of the filing of a petition for supervised
administration, a personal representative who has been appointed previously shall not
exercise his power to distribute any estate. The filing of the petition does not affect
his other powers and duties unless the court restricts the exercise of any of them
pending full hearing on the petition.
14-3504 Supervised administration; powers of personal representative
Unless restricted by the court, a supervised personal representative has, without
interim orders approving exercise of a power, all powers of personal representatives
under this title, but all sales of real property shall be subject to court confirmation
and the personal representative shall not exercise his power to make any distribution of
the estate without prior order of the court. Any other restriction on the power of a
personal representative which may be ordered by the court must be endorsed on his letters
of appointment and, unless so endorsed, is ineffective as to persons dealing in good
faith with the personal representative.
14-3505 Supervised administration; interim orders; distribution and closing orders; annual accounts; accounting on closing
A. Unless otherwise ordered by the court, supervised administration is terminated
by order in accordance with time restrictions, notices and contents of orders prescribed
for proceedings under section 14-3931. Interim orders approving or directing partial
distributions or granting other relief may be issued by the court at any time during the
pendency of a supervised administration on the application of the personal representative
or any interested person.
B. A supervised personal representative shall file an account with the court not
less than annually during his administration, and on closing shall file a final account
to be approved under section 14-3931. He shall also account to the court on resignation
or removal. Subject to appeal or vacation within the time permitted, an order made on
notice and hearing allowing an intermediate account of a personal representative
adjudicates his liabilities concerning matters considered in connection therewith. A
copy of the intermediate account must be sent to all interested parties along with notice
of hearing on the account. In connection with any account, the court may require the
personal representative to submit to physical check of the estate in his control, to be
made in any manner the court may specify.
14-3601 Qualification
Prior to receiving letters, a personal representative shall qualify by filing with
the appointing court any required bond and a statement of acceptance of the duties of the
office.
14-3602 Acceptance of appointment; consent to jurisdiction
By accepting appointment, a personal representative submits personally to the
jurisdiction of the court in any proceeding relating to the estate that may be instituted
by any interested person. Notice of any proceeding shall be delivered to the personal
representative, or mailed to him by ordinary first class mail at his address as listed in
the application or petition for appointment or as thereafter reported to the court and to
his address as then known to the petitioner.
14-3603 Bond required; exceptions
A. A bond is required of a personal representative unless either:
1. The will expressly waives the bond.
2. All of the heirs if no will has been probated, or all of the devisees under a
will which does not provide for waiver of the bond, file with the court a written waiver
of the bond requirement. A duly appointed guardian or conservator may waive on behalf of
his ward or protected person unless the guardian or conservator is the personal
representative.
3. The personal representative is a national banking association, a holder of a
banking permit under the laws of this state, a savings and loan association authorized to
conduct trust business in this state, a title insurance company which is qualified to do
business under the laws of this state, a trust company holding a certificate to engage in
trust business from the superintendent of financial institutions or the public fiduciary.
4. The petition for formal or informal appointment alleges that the probable value
of the entire estate will permit summary procedures under section 14-3973 and the
surviving spouse, or the nominee of the surviving spouse, is applying for appointment as
personal representative.
B. In any case where a bond is not required under subsection A of this section, the
court may, upon petition of any interested person and upon reasonable proof that the
interest of the petitioning person is in danger of being lost because of the
administration of the estate, require a bond in such amount as the court may direct to
protect the interest of the petitioner or of the petitioner and others. An heir or
devisee who initially waived bond may be a petitioner under this subsection.
C. If a bond is not initially required because the petition for appointment alleges
that the probable value of the entire estate will permit summary procedures under section
14-3973, and it later appears from the inventory and appraisal that the value of the
estate will not permit use of such procedures, then the personal representative must
promptly file a bond unless one is not required for some other reason under subsection A
of this section.
14-3604 Bond amount; security; procedure; reduction
A. If bond is required and the provisions of the will or order do not specify the
amount, unless stated in his application or petition, the person qualifying shall file a
statement under oath with the registrar indicating his best estimate of the value of the
personal estate of the decedent, real estate, less encumbrances thereon and of the income
expected from the personal and real estate during the next year, and he shall execute and
file a bond with the registrar, or give other suitable security, in an amount not less
than the estimate provided, however, that said bond may be reduced by the amount of any
real estate, less encumbrances thereon, if the letters issued to the personal
representative contain the restriction that sales of real property by the personal
representative are subject to court confirmation. The registrar shall determine that the
bond is duly executed by a corporate surety, or one or more individual sureties whose
performance is secured by pledge of personal property, mortgage on real property or other
adequate security. The registrar may permit the amount of the bond to be reduced by the
value of assets of the estate deposited with the clerk of the court or a domestic
financial institution, as defined in section 14-6101, in a manner that prevents their
unauthorized disposition. On petition of the personal representative or another
interested person the court may excuse a requirement of bond, increase or reduce the
amount of the bond, release sureties, or permit the substitution of another bond with the
same or different sureties.
B. When a surety of a personal representative desires to be released from
responsibility for future acts, he may apply to the court for a release. The court shall
cause a citation to be issued to the personal representative, requiring him to appear at
a time and place therein specified, and to give other security. Notice shall be given to
the personal representative as provided in section 14-3602. If new security is given and
approved by the judge he may thereupon order that the surety who applied for release
shall not be liable on his bond for any subsequent act, default or misconduct of the
personal representative. If the personal representative neglects or refuses to give new
and sufficient security on the return of the citation, or within such reasonable time as
the judge allows, unless the surety making the application consents to an extension of
time, the court shall revoke the letters.
14-3606 Terms and conditions of bonds
A. The following requirements and provisions apply to any bond required by this
article:
1. Bonds shall name the state as obligee for the benefit of the persons interested
in the estate and shall be conditioned upon the faithful discharge by the fiduciary of
all duties according to law.
2. Unless otherwise provided by the terms of the approved bond, sureties are
jointly and severally liable with the personal representative and with each other. The
address of sureties shall be stated in the bond.
3. By executing an approved bond of a personal representative, the surety consents
to the jurisdiction of the court which issued letters to the primary obligor in any
proceedings pertaining to the fiduciary duties of the personal representative and naming
the surety as a party. Notice of any proceeding shall be delivered to the surety or
mailed to him by registered or certified mail at his address as listed with the court
where the bond is filed and to his address as then known to the petitioner.
4. On petition of a successor personal representative, any other personal
representative of the same decedent, or any interested person, a proceeding in the court
may be initiated against a surety for breach of the obligation of the bond of the
personal representative.
5. The bond of the personal representative is not void after the first recovery but
may be proceeded against from time to time until the whole penalty is exhausted.
B. No action or proceeding may be commenced against the surety on any matter as to
which an action or proceeding against the primary obligor is barred by adjudication or
limitation.
14-3607 Order restraining personal representative
A. On petition of any person who appears to have an interest in the estate, the
court by temporary order may restrain a personal representative from performing specified
acts of administration, disbursement or distribution, or may exercise any powers or
discharge any duties of his office, or may make any other order to secure proper
performance of his duty, if it appears to the court that the personal representative
otherwise may take some action which would jeopardize unreasonably the interest of the
applicant or of some other interested person. Persons with whom the personal
representative may transact business may be made parties.
B. The matter shall be set for hearing within ten days unless the parties otherwise
agree. Notice as the court directs shall be given to the personal representative and his
attorney of record, if any, and to any other parties named defendant in the petition.
14-3608 Termination of appointment; general
Termination of appointment of a personal representative occurs as indicated in
sections 14-3609 through 14-3612. Termination ends the right and power pertaining to the
office of personal representative as conferred by this title or any will, except that a
personal representative, at any time prior to distribution or until restrained or
enjoined by court order, may perform acts necessary to protect the estate and may deliver
the assets to a successor representative. Termination does not discharge a personal
representative from liability for transactions or omissions occurring before termination,
or relieve him of the duty to preserve assets subject to his control, to account therefor
and to deliver the assets. Termination does not affect the jurisdiction of the court
over the personal representative, but terminates his authority to represent the estate in
any pending or future proceeding.
14-3609 Termination of appointment; death or disability
The death of a personal representative or the appointment of a conservator for the
estate of a personal representative, terminates his appointment. Until appointment and
qualification of a successor or special representative to replace the deceased or
protected representative, the representative of the estate of the deceased or protected
personal representative, if any, has the duty to protect the estate possessed and being
administered by his decedent or ward at the time his appointment terminates, has the
power to perform acts necessary for protection and shall account for and deliver the
estate assets to a successor or special personal representative upon his appointment and
qualification.
14-3610 Termination of appointment; voluntary
A. An appointment of a personal representative terminates as provided in section
14-3933, one year after the filing of a closing statement.
B. An order closing an estate as provided in section 14-3931 or 14-3932 terminates
an appointment of a personal representative.
C. A personal representative may resign his position by filing a written statement
of resignation with the registrar after he has given at least fifteen days written notice
to the persons known to be interested in the estate. If no one applies or petitions for
appointment of a successor representative within the time indicated in the notice, the
filed statement of resignation is ineffective as a termination of appointment and in any
event is effective only upon the appointment and qualification of a successor
representative and delivery of the assets to him.
14-3611 Termination of appointment by removal; cause; procedure
A. A person interested in the estate may petition for removal of a personal
representative for cause at any time. On filing of the petition, the court shall fix a
time and place for a hearing. Notice shall be given by the petitioner to the personal
representative, and to other persons as the court may order. Except as otherwise ordered
as provided in section 14-3607, after receipt of notice of removal proceedings, the
personal representative shall not act except to account, to correct maladministration or
to preserve the estate. If removal is ordered, the court also shall direct by order the
disposition of the assets remaining in the name of, or under the control of, the personal
representative being removed.
B. Cause for removal exists under any of the following circumstances:
1. If removal would be in the best interests of the estate.
2. If it is shown that a personal representative or the person seeking the
personal representative's appointment intentionally misrepresented material facts in the
proceedings leading to the personal representative's appointment.
3. If it is shown that the personal representative has disregarded an order of the
court, has become incapable of discharging the duties of that office, has mismanaged the
estate or has failed to perform any duty pertaining to that office.
4. If it is shown that the personal representative has disregarded the reasonable
written wishes of the decedent regarding the disposition of the decedent's remains.
C. Unless the decedent's will directs otherwise, a personal representative
appointed at the decedent's domicile, incident to securing appointment of himself or his
nominee as ancillary personal representative, may obtain removal of another who was
appointed personal representative in this state to administer local assets.
14-3612 Termination of appointment; change of testacy status
Except as otherwise ordered in formal proceedings, the probate of a will subsequent
to the appointment of a personal representative in intestacy or under a will which is
superseded by formal probate of another will, or the vacation of an informal probate of a
will subsequent to the appointment of the personal representative thereunder, does not
terminate the appointment of the personal representative although his powers may be
reduced as provided in section 14-3401. Termination occurs upon appointment in informal
or formal appointment proceedings of a person entitled to appointment under the later
assumption concerning testacy. If no request for new appointment is made within thirty
days after expiration of time for appeal from the order in formal testacy proceedings, or
from the informal probate, changing the assumption concerning testacy, the previously
appointed personal representative upon request may be appointed personal representative
under the subsequently probated will, or as in intestacy as the case may be.
14-3613 Successor personal representative
Articles 3 and 4 of this chapter govern proceedings for appointment of a personal
representative to succeed one whose appointment has been terminated. After appointment
and qualification, a successor personal representative may be substituted in all actions
and proceedings to which the former personal representative was a party, and no notice,
process or claim which was given or served upon the former personal representative need
be given to or served upon the successor in order to preserve any position or right the
person giving the notice or filing the claim may thereby have obtained or preserved with
reference to the former personal representative. Except as otherwise ordered by the
court, the successor personal representative has the powers and duties in respect to the
continued administration which the former personal representative would have had if his
appointment had not been terminated.
14-3614 Special administrator; appointment
A special administrator may be appointed:
1. Informally by the registrar on the application of any interested person when
necessary to protect the estate of a decedent prior to the appointment of a general
personal representative or if a prior appointment has been terminated as provided in
section 14-3609.
2. In a formal proceeding by order of the court on the petition of any interested
person and finding, after notice and hearing, that appointment is necessary to preserve
the estate or to secure its proper administration including its administration in
circumstances where a general personal representative cannot or should not act. If it
appears to the court that an emergency exists, appointment may be ordered without notice.
14-3615 Special administrator; who may be appointed
A. If a special administrator is to be appointed pending the probate of a will
which is the subject of a pending application or petition for probate, the person named
executor in the will shall be appointed if available, and qualified.
B. In other cases, any proper person may be appointed special administrator.
14-3616 Special administrator; appointed informally; powers and duties
A special administrator appointed by the registrar in informal proceedings pursuant
to section 14-3614, paragraph 1 has the duty to collect and manage the assets of the
estate, to preserve them, to account therefor and to deliver them to the general personal
representative upon his qualification. The special administrator has the power of a
personal representative under this title necessary to perform his duties.
14-3617 Special administrator; formal proceedings; power and duties
A special administrator appointed by order of the court in any formal proceeding has
the power of a general personal representative except as limited in the appointment and
duties as prescribed in the order. The appointment may be for a specified time, to
perform particular acts or on other terms as the court may direct.
14-3618 Termination of appointment; special administrator
The appointment of a special administrator terminates in accordance with the
provisions of the order of appointment or on the appointment of a general personal
representative. In other cases, the appointment of a special administrator is subject to
termination as provided in sections 14-3608 through 14-3611.
14-3701 Time of accrual of duties and powers
The duties and powers of a personal representative commence on appointment. The
powers of a personal representative relate back in time to give acts by the person
appointed which are beneficial to the estate occurring prior to appointment the same
effect as those occurring thereafter. Prior to appointment, a person named personal
representative in a will may carry out written instructions of the decedent relating to
the decedent's body, funeral and burial arrangements. A personal representative may
ratify and accept acts on behalf of the estate done by others where the acts would have
been proper for a personal representative.
14-3702 Priority among different letters
A person to whom general letters are issued first has exclusive authority under the
letters until his appointment is terminated or modified. If, through error, general
letters are afterwards issued to another, the first appointed representative may recover
any property of the estate in the hands of the representative subsequently appointed, but
the acts of the latter done in good faith before notice of the first letters are not void
for want of validity of appointment.
14-3703 General duties; relation and liability to persons interested in estate; standing to sue
A. A personal representative is a fiduciary who shall observe the standards of care
applicable to trustees as described by section 14-7302 and the duties of accounting
applicable to trustees as provided in section 14-7303. A personal representative is
under a duty to settle and distribute the estate of the decedent in accordance with the
terms of any probated and effective will and this title, and as expeditiously and
efficiently as is consistent with the best interests of the estate. The personal
representative shall use the authority conferred by this title, the terms of the will, if
any, and any order in proceedings to which the personal representative is a party for the
best interests of successors to the estate.
B. A personal representative shall not be surcharged for acts of administration or
distribution if the conduct in question was authorized at the time. Subject to other
obligations of administration, an informally probated will is authority to administer and
distribute the estate according to its terms. An order of appointment of a personal
representative, whether issued in informal or formal proceedings, is authority to
distribute apparently intestate assets to the heirs of the decedent if, at the time of
distribution, the personal representative is not aware of a pending testacy proceeding, a
proceeding to vacate an order entered in an earlier testacy proceeding, a formal
proceeding questioning the personal representative's appointment or fitness to continue,
or a supervised administration proceeding. Nothing in this section affects the duty of
the personal representative to administer and distribute the estate in accordance with
the rights of claimants, the surviving spouse, any minor children, any dependent children
and any pretermitted child of the decedent as described elsewhere in this title.
C. Except as to proceedings which do not survive the death of the decedent, a
personal representative of a decedent domiciled in this state at death has the same
standing to sue and be sued in the courts of this state and the courts of any other
jurisdiction as the decedent had immediately prior to death. 14-3704 Personal representative to proceed without court order; exception
A personal representative shall proceed expeditiously with the settlement and
distribution of a decedent's estate and, except as otherwise specified or ordered in
regard to a supervised personal representative, do so without adjudication, order or
direction of the court, but he may invoke the jurisdiction of the court, in proceedings
authorized by this title, to resolve questions concerning the estate or its
administration.
14-3705 Duty of personal representative; information to heirs and devisees
Not later than thirty days after appointment every personal representative, except
any special administrator, shall give information of the appointment to the heirs and
devisees, including, if there has been no formal testacy proceeding and if the personal
representative was appointed on the assumption that the decedent died intestate, the
devisees in any will mentioned in the application for appointment of a personal
representative. The information shall be delivered or sent by first class mail to each of
the heirs and devisees whose address is reasonably available to the personal
representative. If appointment is made in a formal proceeding, information under this
section need not be given to persons given notice of the formal proceeding. The duty
does not extend to require information to persons who have been adjudicated in a prior
formal testacy proceeding to have no interest in the estate. The information shall
include the name and address of the personal representative, indicate that it is being
sent to persons who have or may have some interest in the estate being administered,
indicate whether a bond has been filed and describe the court where papers relating to
the estate are on file. The personal representative's failure to give this information
is a breach of the personal representative's duty to the persons concerned but does not
affect the validity of the appointment or the personal representative's powers or other
duties. A personal representative may inform other persons of the appointment by
delivery or first class mail. The personal representative shall comply with the
provisions of title 43, chapter 13.
14-3706 Duty of personal representative; inventory and appraisement
A. Within ninety days after his appointment, a personal representative, who is not
a special administrator or a successor to another representative who has previously
discharged this duty, shall prepare an inventory of property owned by the decedent at the
time of his death, listing it with reasonable detail, and indicating as to each listed
item, its fair market value as of the date of the decedent's death, its nature as
community or separate property and the type and amount of any encumbrance that may exist
with reference to any item.
B. The personal representative may file the original of the inventory with the
court and send a copy of the inventory only to interested persons who request it; or, if
he elects not to file the inventory with the court, he must deliver or mail a copy of the
inventory to each of the heirs in an intestate estate, or to each of the devisees if a
will has been probated, and to any other interested persons who request it.
14-3707 Employment of appraisers
The personal representative may employ a qualified and disinterested appraiser to
assist him in ascertaining the fair market value as of the date of the decedent's death
of any asset the value of which may be subject to reasonable doubt. Different persons
may be employed to appraise different kinds of assets included in the estate. The names
and addresses of any appraiser shall be indicated on the inventory with the item or items
he appraised.
14-3708 Duty of personal representative; supplementary inventory
If any property not included in the original inventory comes to the knowledge of a
personal representative or if the personal representative learns that the value or
description indicated in the original inventory for any item is erroneous or misleading,
he shall make a supplementary inventory or appraisement showing the market value as of
the date of the decedent's death of the new item or the revised market value or
descriptions, and the appraisers or other data relied upon, if any, and file it with the
court if the original inventory was filed, or furnish copies thereof or information
thereof to persons interested in the new information.
14-3709 Duty of personal representative; possession of estate; discovery of concealed assets
A. Except as otherwise provided by a decedent's will, every personal representative
has a right to, and shall take possession or control of, the decedent's property, except
that any real property or tangible personal property may be left with or surrendered to
the person presumptively entitled to it unless or until, in the judgment of the personal
representative, possession of the property by the personal representative will be
necessary for purposes of administration. The request by a personal representative for
delivery of any property possessed by an heir or devisee is conclusive evidence, in any
action against the heir or devisee for possession of the property, that the possession of
the property by the personal representative is necessary for purposes of
administration. The personal representative shall pay taxes on, and take all steps
reasonably necessary for the management, protection and preservation of, the estate in
the personal representative's possession. The personal representative may maintain an
action to recover possession of property or to determine its title.
B. If the personal representative or other person interested in the estate of a
decedent complains to the court, on oath, that a person is suspected of having concealed,
embezzled, conveyed or disposed of any property of a decedent, or possesses or has
knowledge of deeds, bonds, contracts or other writings which contain evidence of or tend
to disclose the right, interest or claim of a decedent to any property, or the will of a
decedent, the court may cite that person to appear before the court and may examine that
person on oath on the complaint. If that person is not in the county where letters have
been issued, the person may be cited and examined before the court in the county where
the person is found or the court issuing the citation. If the person appears and the
court determines that the claim is unfounded, the court shall allow that person necessary
expenses out of the estate.
C. If the person cited as provided by subsection B refuses to appear and submit to
an examination, or to answer questions relevant to the complaint, the court may commit
that person to jail until the person submits to the order of the court or is discharged
according to law.
D. If on examination or from other evidence adduced at the hearing it appears that
a person has concealed, embezzled, conveyed or disposed of any property of a decedent,
or possesses or has knowledge of deeds, bonds, contracts or other writings tending to
disclose the right, interest or claim of a decedent to any property, or the will of a
decedent, the court may order that person to turn over the documents or disclose
knowledge to the personal representative and may commit the person cited to jail until
the order is complied with or the person is discharged according to law. The examination
shall be reduced to writing and filed in court. The order for the disclosure made on
this examination is prima facie evidence of the right of the personal representative to
the property in an action brought for recovery of that property, and a judgment shall be
for double the value of the property, or for return of the property and damages in
addition to the property equal to the value of the property. The court may also award
reasonable attorney fees and costs.
14-3710 Power to avoid transfers; action to set aside fraudulent conveyances
A. The property liable for the payment of unsecured debts of a decedent includes
all property transferred by him by any means which is in law void or voidable as against
his creditors and subject to prior liens. The right to recover this property, so far as
necessary for the payment of unsecured debts of the decedent, is exclusively in the
personal representative.
B. When there is a deficiency of assets in custody of a personal representative,
and decedent in his lifetime has conveyed or transferred property, or any rights or
interests therein, with intent to defraud creditors, or to avoid a right, debt or duty of
any person, or has conveyed or transferred the property so that the conveyance or
transfer by law is void or voidable as against creditors, the personal representative
shall commence and prosecute an action for the recovery of the property for the benefit
of the creditors, and shall recover property which has been so conveyed or transferred,
whatever may have been the manner of the conveyance or transfer.
C. The personal representative is not bound to bring the action unless the
creditors pay such part of the costs and expenses of the action, or give such surety to
the personal representative therefor as the court on application by the creditors may
direct.
D. The property recovered shall be subject to payment of the debts of decedent as
other property in custody of the personal representative.
14-3711 Powers of personal representatives; in general
Until termination of his appointment a personal representative has the same power
over the title to property of the estate that an absolute owner would have, in trust
however, for the benefit of the creditors and others interested in the estate. This
power may be exercised without notice, hearing or order of court.
14-3712 Improper exercise of power; breach of fiduciary duty
If the exercise of power concerning the estate is improper, the personal
representative is liable to interested persons for damage or loss resulting from breach
of his fiduciary duty to the same extent as a trustee of an express trust. The rights of
purchasers and others dealing with a personal representative shall be determined as
provided in sections 14-3713 and 14-3714.
14-3713 Sale, encumbrance or transaction involving conflict of interest; voidable; exceptions
Any sale or encumbrance to the personal representative, his spouse, agent or
attorney, or any corporation or trust in which he has a substantial beneficial interest,
or any transaction which is affected by a substantial conflict of interest on the part of
the personal representative, is voidable by any person interested in the estate except
one who has consented after fair disclosure, unless either:
1. The will or a contract entered into by the decedent expressly authorized the
transaction.
2. The transaction is approved by the court after notice to interested persons.
14-3714 Persons dealing with personal representative; protection
A person who in good faith either assists or deals with another person acting as a
personal representative, on the basis of a copy of letters certified by or under the
direction of the court or an officer thereof within sixty days of the transaction, is
protected as if the personal representative properly exercised his power and even though
the authority of that person as personal representative has been terminated. The fact
that a person knowingly deals with one who purports to act as a personal representative
does not alone require the person to inquire into the existence of a power, the propriety
of its exercise, or the current authority of the purported personal
representative. Except for restrictions on powers of supervised personal representatives
which are endorsed on letters as provided in section 14-3504, no provision in any will or
order of court purporting to limit the power of a personal representative is effective
except as to persons with actual knowledge thereof. A person is not bound to see to the
proper application of estate assets paid or delivered to a personal representative. The
protection here expressed extends to instances in which some procedural irregularity or
jurisdictional defect occurred in proceedings leading to the issuance of letters,
including a case in which the alleged decedent is found to be alive. The protection here
expressed is not by substitution for that provided by comparable provisions of the laws
relating to commercial transactions and laws simplifying transfers of securities by
fiduciaries. If property is wrongfully transferred by a person acting as a personal
representative to a person who is not in good faith, any person who subsequently
purchases the property in good faith is protected as if the original transferee dealt in
good faith.
14-3715 Transactions authorized for personal representatives; exceptions
Except as restricted or otherwise provided by the will or by an order in a formal
proceeding and subject to the priorities stated in section 14-3902, a personal
representative, acting reasonably for the benefit of the interested persons, may
properly:
1. Retain assets owned by the decedent pending distribution or liquidation
including those in which the representative is personally interested or which are
otherwise improper for trust investment.
2. Receive assets from fiduciaries or other sources.
3. Perform, compromise or refuse performance of the decedent's contracts that
continue as obligations of the estate, as he may determine under the circumstances. In
performing enforceable contracts by the decedent to convey or lease land, the personal
representative, among other possible courses of action, may either:
(a) Execute and deliver a deed of conveyance for cash payment of all sums remaining
due or the purchaser's note for the sum remaining due secured by a mortgage or deed of
trust on the land.
(b) Deliver a deed in escrow with directions that the proceeds, when paid in
accordance with the escrow agreement, be paid to the successors of the decedent, as
designated in the escrow agreement.
4. Satisfy written charitable pledges of the decedent irrespective of whether the
pledges constituted binding obligations of the decedent or were properly presented as
claims, if in the judgment of the personal representative the decedent would have wanted
the pledges completed under the circumstances.
5. If funds are not needed to meet debts and expenses currently payable and are not
immediately distributable, deposit or invest liquid assets of the estate, including
monies received from the sale of other assets, in federally insured interest-bearing
accounts, readily marketable secured loan arrangements or other prudent investments which
would be reasonable for use by trustees generally.
6. Acquire or dispose of an asset, including land in this or another state, for
cash or on credit and at public or private sale and manage, develop, improve, exchange,
partition, change the character of or abandon an estate asset.
7. Make ordinary or extraordinary repairs or alterations in buildings or other
structures, demolish any improvements, raze existing or erect new party walls or
buildings.
8. Subdivide, develop or dedicate land to public use, make or obtain the vacation
of plats and adjust boundaries, adjust differences in valuation on exchange or partition
by giving or receiving considerations or dedicate easements to public use without
consideration.
9. Enter for any purpose into a lease as lessor or lessee, with or without option
to purchase or renew, for a term within or extending beyond the period of administration.
10. Enter into a lease or arrangement for exploration and removal of minerals or
other natural resources or enter into a pooling or unitization agreement.
11. Abandon property when, in the opinion of the personal representative, it is
valueless, is so encumbered, or is in condition that it is of no benefit to the estate.
12. Vote stocks or other securities in person or by general or limited proxy.
13. Pay calls, assessments, and other sums chargeable or accruing against or on
account of securities, unless barred by the provisions relating to claims.
14. Hold a security in the name of a nominee or in other form without disclosure of
the interest of the estate but the personal representative is liable for any act of the
nominee in connection with the security so held.
15. Insure the assets of the estate against damage, loss and liability and himself
against liability as to third persons.
16. Borrow money with or without security to be repaid from the estate assets or
otherwise, and advance money for the protection of the estate.
17. Effect a fair and reasonable compromise with any debtor or obligor, or extend,
renew or in any manner modify the terms of any obligation owing to the estate. If the
personal representative holds a mortgage, pledge or other lien upon property of another
person, he may, in lieu of foreclosure, accept a conveyance or transfer of encumbered
assets from the owner thereof in satisfaction of the indebtedness secured by lien.
18. Pay taxes, assessments, compensation of the personal representative and other
expenses incident to the administration of the estate.
19. Sell or exercise stock subscription or conversion rights, and consent, directly
or through a committee or other agent, to the reorganization, consolidation, merger,
dissolution or liquidation of a corporation or other business enterprise.
20. Allocate items of income or expense to either estate income or principal, as
permitted or provided by law.
21. Employ persons, including attorneys, auditors, investment advisors or agents,
even if they are associated with the personal representative, to advise or assist the
personal representative in the performance of his administrative duties, act without
independent investigation upon their recommendations and instead of acting personally,
employ one or more agents to perform any act of administration, whether or not
discretionary.
22. Prosecute or defend claims, or proceedings in any jurisdiction for the
protection of the estate and of the personal representative in the performance of his
duties.
23. Sell, mortgage or lease any real or personal property of the estate or any
interest therein for cash, credit or for part cash and part credit, and with or without
security for unpaid balances.
24. Continue any unincorporated business or venture in which the decedent was
engaged at the time of his death:
(a) In the same business form for a period of not more than four months from the
date of appointment of a general personal representative if continuation is a reasonable
means of preserving the value of the business including goodwill.
(b) In the same business form for any additional period of time that may be
approved by order of the court in a formal proceeding with notice to interested persons.
(c) Throughout the period of administration if the business is incorporated by the
personal representative and if none of the probable distributees of the business who are
competent adults object to its incorporation and retention in the estate.
25. Incorporate any business or venture in which the decedent was engaged at the
time of his death.
26. Provide for exoneration of the personal representative from personal liability
in any contract entered into on behalf of the estate.
27. Satisfy and settle claims and distribute the estate as provided in this title.
14-3716 Powers and duties of successor personal representative
A successor personal representative has the same power and duty as the original
personal representative to complete the administration and distribution of the estate, as
expeditiously as possible, but he shall not exercise any power expressly made personal to
the executor named in the will.
14-3717 Co-representatives; when joint action required
If two or more persons are appointed co-representatives and unless the will provides
otherwise, the concurrence of all is required on all acts connected with the
administration and distribution of the estate. This restriction does not apply when any
co-representative receives and receipts for property due the estate, when the concurrence
of all cannot readily be obtained in the time reasonably available for emergency action
necessary to preserve the estate, or when a co-representative has been delegated to act
for the others. Persons dealing with a co-representative if actually unaware that
another has been appointed to serve with him or if advised by the personal representative
with whom they deal that he has authority to act alone for any of the reasons mentioned
herein, are as fully protected as if the person with whom they dealt had been the sole
personal representative.
14-3718 Powers of surviving personal representative
Unless the terms of the will otherwise provide, every power exercisable by personal
co-representatives may be exercised by the one or more remaining after the appointment of
one or more is terminated, and if one of two or more nominated as co-executors is not
appointed, those appointed may exercise all the powers incident to the office.
14-3719 Compensation of personal representative
A personal representative is entitled to reasonable compensation for his
services. If a will provides for compensation of the personal representative and there
is no contract with the decedent regarding compensation, he may renounce the provision
before qualifying and be entitled to reasonable compensation. A personal representative
also may renounce his right to all or any part of the compensation. A written
renunciation of fee may be filed with the court.
14-3720 Expenses in estate litigation
If any personal representative or person nominated as personal representative
defends or prosecutes any proceeding in good faith, whether successful or not he is
entitled to receive from the estate his necessary expenses and disbursements including
reasonable attorneys' fees incurred.
14-3721 Proceedings for review of employment of agents and compensation of personal representatives and employees of estate
After notice to all interested persons, on petition of an interested person,
including any person employed by the personal representative, or on appropriate motion if
administration is supervised, the court may review the propriety of employment of any
person by the personal representative, the reasonableness of the compensation of any
person so employed, or the reasonableness of the compensation determined by the personal
representative for his own services. Any person who has received excessive compensation
from an estate for services rendered may be ordered to make appropriate refund.
14-3722 Compensation of appointees
A. If not otherwise compensated for services rendered, an investigator, accountant
or lawyer appointed pursuant to this article is entitled to reasonable compensation from
the estate of the decedent. If the court compensates the provider of a service the court
may charge the estate for the reasonable cost of the service and shall deposit these
monies in the probate fund pursuant to section 14-5433.
B. Notwithstanding subsection A of this section, if compensation by the estate is
not feasible the court shall determine and pay reasonable compensation for services
rendered by an investigator, accountant or lawyer appointed in a probate administration
proceeding.
14-3801 Notice to creditors
A. Unless notice has already been given under this section, at the time of
appointment a personal representative shall publish a notice to creditors once a week for
three successive weeks in a newspaper of general circulation in the county announcing the
appointment and the personal representative's address and notifying creditors of the
estate to present their claims within four months after the date of the first publication
of the notice or be forever barred.
B. A personal representative shall give written notice by mail or other delivery to
all known creditors, notifying the creditors of the personal representative's
appointment. The notice shall also notify all known creditors to present the creditor's
claim within four months after the published notice, if notice is given as provided in
subsection A, or within sixty days after the mailing or other delivery of the notice,
whichever is later, or be forever barred. A written notice shall be the notice described
in subsection A or a similar notice.
C. The personal representative is not liable to a creditor or to a successor of the
decedent for giving or failing to give notice under this section.
14-3802 Statute of limitations
Unless an estate is insolvent the personal representative, with the consent of all
successors whose interests would be affected, may waive any defense of limitations
available to the estate. If the defense is not waived, no claim which was barred by any
statute of limitations at the time of the decedent's death shall be allowed or paid. The
running of any statute of limitations measured from some other event than death and
advertisement for claims against a decedent is suspended during the four months following
the decedent's death but resumes thereafter as to claims not barred pursuant to the
sections which follow. For purposes of any statute of limitations, the proper
presentation of a claim under section 14-3804 is equivalent to commencement of a
proceeding on the claim.
14-3803 Limitations on presentation of claims
A. All claims against a decedent's estate that arose before the death of the
decedent, including claims of the state and any of its political subdivisions, whether
due or to become due, absolute or contingent, liquidated or unliquidated, founded on
contract, tort or other legal basis, if not barred earlier by any other statute of
limitations or nonclaim statute, are barred against the estate, the personal
representative and the heirs and devisees of the decedent, unless presented within the
earlier of either:
1. Two years after the decedent's death plus the time remaining in the period
commenced by an actual or published notice pursuant to section 14-3801, subsection A or
B.
2. The time prescribed by section 14-3801, subsection B for creditors who are given
actual notice and within the time prescribed in section 14-3801, subsection A for all
creditors barred by publication.
B. A claim that is described in subsection A of this section and that is barred by
the nonclaim statute of the decedent's domicile before the giving of notice to creditors
in this state is barred in this state.
C. All claims against a decedent's estate that arise at or after the death of the
decedent, including claims of the state and any political subdivision, whether due or to
become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort
or other legal basis, are barred against the estate, the personal representative and the
heirs and devisees of the decedent, unless presented as either of the following:
1. A claim based on a contract with the personal representative, within four months
after performance by the personal representative is due.
2. Any other claim, within the later of four months after it arises or the time
specified in subsection A, paragraph 1 of this section.
D. This section does not affect or prevent any of the following:
1. Any proceeding to enforce any mortgage, pledge or other lien upon property of
the estate.
2. To the limits of the insurance protection only, any proceeding to establish
liability of the decedent or the personal representative for which he is protected by
liability insurance.
3. Collection of compensation for services rendered and reimbursement for expenses
advanced by the personal representative or by the attorney or accountant for the personal
representative or the estate.
14-3804 Manner of presentation of claims
Claims against a decedent's estate may be presented as follows:
1. The claimant may deliver or mail to the personal representative a written
statement of the claim indicating its basis, the name and address of the claimant and the
amount claimed. The claim is deemed presented on receipt of the written statement of
claim by the personal representative. If a claim is not yet due, the date when it will
become due shall be stated. If the claim is contingent or unliquidated, the nature of
the uncertainty shall be stated. If the claim is secured, the security shall be
described. Failure to describe correctly the security, the nature of any uncertainty,
and the due date of a claim not yet due does not invalidate the presentation made.
2. The claimant may commence a proceeding against the personal representative in
any court where the personal representative may be subjected to jurisdiction, to obtain
payment of his claim against the estate, but the commencement of the proceeding must
occur within the time limited for presenting the claim. No presentation of claim is
required in regard to matters claimed in proceedings against the decedent which were
pending at the time of his death.
3. If a claim is presented under paragraph 1, no proceeding thereon may be
commenced more than sixty days after the personal representative has mailed a notice of
disallowance; but, in the case of a claim which is not presently due or which is
contingent or unliquidated, the personal representative may consent to an extension of
the sixty day period, or to avoid injustice the court, on petition, may order an
extension of the sixty day period, except no extension may run beyond the applicable
statute of limitations.
14-3805 Priority of claims
A. If the applicable assets of the estate are insufficient to pay all claims in
full, the personal representative shall make payment in the following order:
1. Costs and expenses of administration.
2. Reasonable funeral expenses.
3. Debts and taxes with preference under federal law.
4. Reasonable and necessary medical and hospital expenses of the last illness of
the decedent, including compensation of persons attending him.
5. Debts and taxes with preference under the laws of this state.
6. All other claims.
B. No preference shall be given in the payment of any claim over any other claim of
the same class and a claim due and payable shall not be entitled to a preference over
claims not due.
14-3806 Allowance of claims
A. As to claims presented in the manner described in section 14-3804 within the
time limit prescribed in section 14-3803, the personal representative may mail a notice
to any claimant stating that the claim has been disallowed. Every claim which is
disallowed in whole or in part by the personal representative is barred so far as not
allowed unless the claimant files a petition for allowance in the court or commences a
proceeding against the personal representative not later than sixty days after the
mailing of the notice of disallowance or partial allowance. Failure of the personal
representative to mail notice to a claimant of action on his claim for sixty days after
the time for original presentation of the claim has expired has the effect of a notice of
allowance. The personal representative of the estate of a deceased spouse may classify a
claim as a community claim payable out of community property, or as a separate claim
payable out of separate property and the balance of the decedent's half of community
property. Either classification constitutes a disallowance in part; failure to give
notice of the classification to the claimant as provided in this subsection, or failure
to classify an allowed claim, has the effect of allowing the claim as payable out of
either separate or community property, whichever is more beneficial to the claimant.
B. The personal representative may at any time prior to payment, but not later than
six months after presentation of the claim, rescind the allowance of a claim and notify
the claimant of the change to a disallowance in whole or in part. The disallowed claim
is then subject to bar as provided in subsection A. After allowance of a claim by a
court order or judgment, or entry of an order directing payment of an allowed claim, the
allowance may not be rescinded by the personal representative. After disallowing a claim,
the personal representative may change the disallowance to an allowance prior to
expiration of the time within which the claimant may file a petition for allowance or
commence a proceeding on the claim under subsection A. After a disallowed claim is
barred, it may be allowed and paid only if the estate is solvent and all successors whose
interests would be affected consent.
C. Upon the petition of the personal representative or of a claimant in a
proceeding for the purpose, the court may allow in whole or in part any claim or claims
presented to the personal representative in due time and not barred by subsection A of
this section. Notice in this proceeding shall be given to the claimant, the personal
representative and those other persons interested in the estate as the court may direct
by order entered at the time the proceeding is commenced.
D. A judgment in a proceeding in another court against a personal representative to
enforce a claim against a decedent's estate is an allowance of the claim.
E. Unless otherwise provided in any judgment in another court entered against the
personal representative, allowed claims bear interest at the legal rate for the period
commencing sixty days after the time for original presentation of the claim has expired
unless based on a contract making a provision for interest, in which case they bear
interest in accordance with that provision.
14-3807 Payment of claims
A. On the expiration of the earlier of the time limitations prescribed in section
14-3803 for the presentation of claims, the personal representative shall proceed to pay
the claims allowed against the estate in the order of priority prescribed, after making
provision for allowance in lieu of homestead, exempt property and family allowance, for
claims already presented which have not yet been allowed or whose allowance has been
appealed, and for unbarred claims which may yet be presented, including costs and
expenses of administration. By petition to the court in a proceeding for the purpose, or
by appropriate motion if the administration is supervised, a claimant whose claim has
been allowed but not paid as provided in this section may secure an order directing the
personal representative to pay the claim to the extent that funds of the estate are
available for the payment.
B. The personal representative at any time may pay any just claim which has not
been barred, with or without formal presentation, but the personal representative is
personally liable to any other claimant whose claim is allowed and who is injured by such
payment if either:
1. The payment was made before the expiration of the time limit stated in
subsection A of this section and the personal representative failed to require the payee
to give adequate security for the refund of any of the payment necessary to pay other
claimants.
2. The payment was made, due to the negligence or wilful fault of the personal
representative, in such manner as to deprive the injured claimant of the claimant's
priority.
14-3808 Individual liability of personal representative
A. Unless otherwise provided in the contract, a personal representative is not
individually liable on a contract properly entered into in his fiduciary capacity in the
course of administration of the estate unless he fails to reveal his representative
capacity and identify the estate in the contract.
B. A personal representative is individually liable for obligations arising from
ownership or control of the estate or for torts committed in the course of administration
of the estate only if he is personally at fault.
C. Claims based on contracts entered into by a personal representative in his
fiduciary capacity, on obligations arising from ownership or control of the estate, or on
torts committed in the course of estate administration may be asserted against the estate
by proceeding against the personal representative in his fiduciary capacity, whether or
not the personal representative is individually liable therefor.
D. Issues of liability as between the estate and the personal representative
individually may be determined in a proceeding for accounting, surcharge or
indemnification or other appropriate proceeding.
14-3809 Secured claims
Payment of a secured claim is upon the basis of the amount allowed if the creditor
surrenders his security, otherwise payment is upon the basis of one of the following:
1. If the creditor exhausts his security before receiving payment, unless precluded
by other law, upon the amount of the claim allowed less the fair value of the security.
2. If the creditor does not have the right to exhaust his security or has not done
so, upon the amount of the claim allowed less the value of the security determined by
converting it into money according to the terms of the agreement pursuant to which the
security was delivered to the creditor, or by the creditor and personal representative by
agreement, arbitration, compromise or litigation.
14-3810 Claims not due and contingent or unliquidated claims
A. If a claim which will become due at a future time or a contingent or
unliquidated claim becomes due or certain before the distribution of the estate, and if
the claim has been allowed or established by a proceeding, it is paid in the same manner
as presently due and absolute claims of the same class.
B. In other cases the personal representative or, on petition of the personal
representative or the claimant in a special proceeding for the purpose, the court may
provide for payment as follows:
1. If the claimant consents, he may be paid the present or agreed value of the
claim, taking any uncertainty into account.
2. Arrangement for future payment, or possible payment, on the happening of the
contingency or on liquidation may be made by creating a trust, giving a mortgage,
obtaining a bond or security from a distributee, or otherwise.
14-3811 Counterclaims
In allowing a claim the personal representative may deduct any counterclaim which
the estate has against the claimant. In determining a claim against an estate a court
shall reduce the amount allowed by the amount of any counterclaims and, if the
counterclaims exceed the claim, render a judgment against the claimant in the amount of
the excess. A counterclaim, liquidated or unliquidated, may arise from a transaction
other than that upon which the claim is based. A counterclaim may give rise to relief
exceeding in amount or different in kind from that sought in the claim.
14-3812 Execution and levies prohibited
No execution may issue upon nor may any levy be made against any property of the
estate under any judgment against a decedent or a personal representative, but this
section shall not be construed to prevent the enforcement of mortgages, pledges or liens
upon real or personal property in an appropriate proceeding.
14-3813 Compromise of claims
When a claim against the estate has been presented in any manner, the personal
representative may, if it appears for the best interest of the estate, compromise the
claim, whether due or not due, absolute or contingent, liquidated or unliquidated.
14-3814 Encumbered assets
If any assets of the estate are encumbered by mortgage, pledge, lien or other
security interest, the personal representative may pay the encumbrance or any part
thereof, renew or extend any obligation secured by the encumbrance or convey or transfer
the assets to the creditor in satisfaction of his lien, in whole or in part, whether or
not the holder of the encumbrance has presented a claim, if it appears to be for the best
interest of the estate. Payment of an encumbrance does not increase the share of the
distributee entitled to the encumbered assets unless the distributee is entitled to
exoneration.
14-3815 Administration in more than one state; duty of personal representative
A. All assets of estates being administered in this state are subject to all
claims, allowances and charges existing or established against the personal
representative wherever appointed.
B. If the estate either in this state or as a whole is insufficient to cover all
family exemptions and allowances determined by the law of the decedent's domicile, prior
charges and claims, after satisfaction of the exemptions, allowances and charges, each
claimant whose claim has been allowed either in this state or in another jurisdiction in
administrations of which the personal representative is aware, is entitled to receive
payment of an equal proportion of his claim. If a preference or security in regard to a
claim is allowed in another jurisdiction but not in this state, the creditor so benefited
is to receive dividends from local assets only upon the balance of his claim after
deducting the amount of the benefit.
C. In case the family exemptions and allowances, prior charges and claims of the
entire estate exceed the total value of the portions of the estate being administered
separately and this state is not the state of the decedent's last domicile, the claims
allowed in this state shall be paid their proportion if local assets are adequate for the
purpose, and the balance of local assets shall be transferred to the domiciliary personal
representative. If local assets are not sufficient to pay all claims allowed in this
state the amount to which they are entitled, local assets shall be marshalled so that
each claim allowed in this state is paid its proportion as far as possible, after taking
into account all dividends on claims allowed in this state from assets in other
jurisdictions.
14-3816 Final distribution to domiciliary representative
The estate of a nonresident decedent being administered by a personal representative
appointed in this state shall, if there is a personal representative of the decedent's
domicile willing to receive it, be distributed to the domiciliary personal representative
for the benefit of the successors of the decedent unless any of the following apply:
1. By virtue of the decedent's will, if any, and applicable choice of law rules,
the successors are identified pursuant to the local law of this state without reference
to the local law of the decedent's domicile.
2. The personal representative of this state, after reasonable inquiry, is unaware
of the existence or identity of a domiciliary personal representative.
3. The court orders otherwise in a proceeding for a closing order under section
14-3931 or incident to the closing of a supervised administration. In other cases,
distribution of the estate of a decedent shall be made in accordance with the other
articles of this chapter.
14-3901 Successors' rights if no administration
In the absence of administration, the heirs and devisees are entitled to the estate
in accordance with the terms of a probated will or the laws of intestate
succession. Devisees may establish title by the probated will to devised
property. Persons entitled to property by allowance in lieu of homestead, exemption or
intestacy may establish title thereto by proof of the decedent's ownership, his death and
their relationship to the decedent. Successors take subject to all charges incident to
administration, including the claims of creditors and allowances of surviving spouse and
dependent children, and subject to the rights of others resulting from abatement,
retainer, advancement and ademption.
14-3902 Distribution; order in which assets appropriated; abatement
A. Except as provided in subsection B, shares of distributees abate, without any
preference or priority as between real and personal property, in the following order:
1. Property not disposed of by the will.
2. Residuary devises.
3. General devises.
4. Specific devises.
For purposes of abatement, a general devise charged on any specific property or fund is a
specific devise to the extent of the value of the property on which it is charged, and
upon the failure or insufficiency of the property on which it is charged, a general
devise to the extent of the failure or insufficiency. Abatement within each
classification is in proportion to the amounts of property each of the beneficiaries
would have received if full distribution of the property had been made in accordance with
the terms of the will.
B. If the will expresses an order of abatement, or if the testamentary plan or the
express or implied purpose of the devise would be defeated by the order of abatement
stated in subsection A, the shares of the distributees abate as may be found necessary to
give effect to the intention of the testator.
C. If an estate of a decedent consists partly of separate property and partly of
community property:
1. Community debts shall be charged against community property.
2. Separate debts shall be charged against separate property and against the
balance of decedent's half of community property.
3. Expenses of administration shall be charged against separate property and
decedent's half of community property in proportion to the relative value thereof, but
any special expenses attributable to management of community property may be charged
against the entire community property.
D. If the subject of a preferred devise is sold or used incident to administration,
abatement shall be achieved by appropriate adjustments in, or contribution from, other
interests in the remaining assets.
14-3903 Right of retainer
The amount of a noncontingent indebtedness of a successor to the estate if due, or
its present value if not due, shall be offset against the successor's interest, but the
successor has the benefit of any defense which would be available to him in a direct
proceeding for recovery of the debt.
14-3904 Interest on general pecuniary devise
Unless a contrary intention is indicated by the will, general pecuniary devises bear
interest at the legal rate beginning one year after the first appointment of a personal
representative until payment.
14-3906 Distribution in kind; valuation; method
A. Unless a contrary intention is indicated by the will, the distributable assets
of a decedent's estate shall be distributed in kind to the extent possible through
application of the following provisions:
1. A specific devisee is entitled to distribution of the thing devised to him, and
a spouse or child who has selected particular assets of an estate as provided in section
14-2403 shall receive the items selected.
2. Any allowance in lieu of homestead or family allowance or devise of a stated sum
of money may be satisfied by value in kind if the following are true:
(a) The person entitled to the payment has not demanded payment in cash.
(b) The property distributed in kind is valued at fair market value as of the date
of its distribution.
(c) A residuary devisee has not requested that the asset in question remain a part
of the residue of the estate.
3. For the purpose of valuation under paragraph 2 securities regularly traded on
recognized exchanges, if distributed in kind, are valued at the price for the last sale
of like securities traded on the business day prior to distribution, or if there was no
sale on that day, at the median between amounts bid and offered at the close of that
day. Assets consisting of sums owed the decedent or the estate by solvent debtors as to
which there is no known dispute or defense are valued at the sum due with accrued
interest or discounted to the date of distribution. For assets which do not have readily
ascertainable values, a valuation as of a date not more than thirty days prior to the
date of distribution, if otherwise reasonable, controls. For purposes of facilitating
distribution, the personal representative may ascertain the value of the assets as of the
time of the proposed distribution in any reasonable way, including the employment of
qualified appraisers, even if the assets may have been previously appraised.
4. The residuary estate shall be distributed in kind if there is no objection to
the proposed distribution and it is practicable to distribute undivided interests. In
other cases, residuary property may be converted into cash for distribution.
B. After the probable charges against the estate are known, the personal
representative may mail or deliver a proposal for distribution to all persons who have a
right to object to the proposed distribution. The right of any distributee to object to
the proposed distribution on the basis of the kind or value of asset the person is to
receive, if not waived earlier in writing, terminates if the person fails to object in
writing received by the personal representative within thirty days after mailing or
delivery of the proposal.
14-3907 Distribution in kind; evidence
A. If distribution in kind is made, the personal representative shall execute an
instrument or deed of distribution assigning, transferring or releasing the assets to the
distributee as evidence of the distributee's title to the property.
B. The names and addresses of each distributee shall be included in any instrument
of distribution transferring title to real property recorded by any county recorder.
14-3908 Distribution; right or title of distributee
Proof that a distributee has received an instrument or deed of distribution of
assets in kind, or payment in distribution from a personal representative, is conclusive
evidence that the distributee has succeeded to the interest of the estate in the
distributed assets, as against all persons interested in the estate, except that the
personal representative may recover under section 14-3909 the assets or their value if
the distribution was improper.
14-3909 Improper distribution; liability of distributee
Unless the distribution or payment no longer can be questioned because of
adjudication, estoppel or limitation, a distributee of property or money improperly
distributed or paid, or a claimant who was improperly paid, is liable to return the
property improperly received and its income since distribution if he has the
property. If such a distributee does not have the property, he is liable to return the
value as of the date of disposition of the property improperly received and its income
and gain received by him.
14-3910 Purchasers from distributees or transferees protected
If property distributed in kind or a security interest therein is acquired for value
by a purchaser from or lender to a distributee who has received an instrument or deed of
distribution from the personal representative, or is so acquired by a purchaser from or
lender to a transferee from such distributee, the purchaser or lender takes title free of
rights of any person interested in the estate and incurs no personal liability to the
estate, whether or not the distribution was proper or supported by court order and
whether or not the authority of the personal representative was terminated prior to
execution of the instrument or deed. This section protects a purchaser from or lender to
a distributee who as personal representative has executed a deed of distribution to
himself, as well as from any other distributee or his transferee. To be protected under
this provision, a purchaser or lender need not inquire whether a personal representative
acted properly in making the distribution in kind, even if the personal representative
and the distributee are the same person, or whether the authority of the personal
representative had terminated prior to the distribution.
14-3911 Partition for purpose of distribution
When two or more heirs or devisees are entitled to distribution of undivided
interests in any real or personal property of the estate, the personal representative or
one or more of the heirs or devisees may petition the court prior to the formal or
informal closing of the estate, to make partition. After notice to the interested heirs
or devisees, the court shall partition the property in the same manner as provided by the
law for civil actions of partition. The court may direct the personal representative to
sell any property which cannot be partitioned without prejudice to the owners and which
cannot conveniently be allotted to any one party.
14-3912 Private agreements among successors to decedent binding on personal representative
Subject to the rights of creditors and taxing authorities, competent successors may
agree among themselves to alter the interests, shares, or amounts to which they are
entitled under the will of the decedent or under the laws of intestacy, in any way that
they provide in a written contract executed by all who are affected by its
provisions. The personal representative shall abide by the terms of the agreement
subject to his obligation to administer the estate for the benefit of creditors, to pay
all taxes and expenses of administration, and to carry out the responsibilities of his
office for the benefit of any successors of the decedent who are not parties. Personal
representatives of decedents' estates are not required to see to the performance of
trusts if the trustee thereof is another person who is willing to accept the
trust. Accordingly, trustees of a testamentary trust are successors for the purposes of
this section. This section does not relieve trustees of any duties owed to beneficiaries
of trusts.
14-3913 Distributions to trustee
A. Before distributing to a trustee, the personal representative may require that
the trustee inform the beneficiaries as provided in section 14-7303, and if the state in
which it is to be administered provides for registration, that the trust be registered.
B. If the trust instrument does not excuse the trustee from giving bond, the
personal representative may petition the appropriate court to require that the trustee
post bond if he apprehends that distribution might jeopardize the interests of persons
who are not able to protect themselves, and he may withhold distribution until the court
has acted.
C. No inference of negligence on the part of the personal representative shall be
drawn from his failure to exercise the authority conferred by subsections A and B of this
section. 14-3914 Disposition of unclaimed assets
A. If an heir, devisee or claimant cannot be found, the personal representative
shall distribute the share of the missing person to his conservator, if any, otherwise in
cash to the department of revenue for deposit, pursuant to sections 35-146 and 35-147, in
the permanent school fund.
B. If a person later appears and claims as the missing person, he shall proceed in
the same manner as an heir, devisee or legatee claiming escheated property under sections
12-886 and 12-887. 14-3915 Distribution to person under disability
A personal representative may discharge his obligation to distribute to any person
under legal disability by distributing to his conservator, or any other person authorized
by this title or otherwise to give a valid receipt and discharge for the distribution.
14-3931 Formal proceedings terminating administration; testate or intestate; order of general protection
A. A personal representative or any interested person may petition for an order of
complete settlement of the estate. The personal representative may petition at any time,
and any other interested person may petition after one year from the appointment of the
original personal representative except that no petition under this section may be
entertained until the time for presenting claims which arose prior to the death of the
decedent has expired. The petition may request the court to determine testacy, if not
previously determined, to consider the final account or compel or approve an accounting
and distribution, to construe any will or determine heirs and adjudicate the final
settlement and distribution of the estate. Notice must be given to all interested
persons, and a copy of the final account must also be sent to the distributees whose
interests are affected thereby. After hearing the court may enter an order or orders, on
appropriate conditions, determining the persons entitled to distribution of the estate,
and, as circumstances require, approving settlement and directing, approving or decreeing
distribution of the estate and discharging the personal representative from further claim
or demand of any interested person.
B. If one or more heirs or devisees were omitted as parties in, or were not given
notice of, a previous formal testacy proceeding, the court, on proper petition for an
order of complete settlement of the estate under this section, and after notice to the
omitted or unnotified persons and other interested parties determined to be interested on
the assumption that the previous order concerning testacy is conclusive as to those given
notice of the earlier proceeding, may determine testacy as it affects the omitted persons
and confirm or alter the previous order of testacy as it affects all interested persons
as appropriate in the light of the new proofs. In the absence of objection by an omitted
or unnotified person, evidence received in the original testacy proceeding shall
constitute prima facie proof of due execution of any will previously admitted to probate,
or of the fact that the decedent left no valid will if the prior proceedings determined
this fact.
14-3932 Formal proceedings terminating testate administration; order construing will without adjudicating testacy
A personal representative administering an estate under an informally probated will
or any devisee under an informally probated will may petition for an order of settlement
of the estate which will not adjudicate the testacy status of the decedent. The personal
representative may petition at any time, and a devisee may petition after one year from
the appointment of the original personal representative, except that no petition under
this section may be entertained until the time for presenting claims which arose prior to
the death of the decedent has expired. The petition may request the court to consider
the final account or compel or approve an accounting and distribution, to construe the
will and adjudicate final settlement and distribution of the estate. After notice to all
devisees and the personal representative and hearing, the court may enter an order or
orders, on appropriate conditions, determining the persons entitled to distribution of
the estate under the will, and, as circumstances require, approving settlement and
directing, approving or decreeing distribution of the estate and discharging the personal
representative from further claim or demand of any devisee who is a party to the
proceeding and those he represents. If it appears that a part of the estate is
intestate, the proceedings shall be dismissed or amendments made to meet the provisions
of section 14-3931.
14-3933 Closing estates; statement of personal representative
A. Unless prohibited by order of the court and except for estates being
administered in supervised administration proceedings, a personal representative may
close an estate by filing with the court no earlier than four months after the date of
original appointment of a general personal representative for the estate a verified
statement stating that the personal representative, or a previous personal representative
has:
1. Determined that the time limit for presentation of creditors' claims has
expired.
2. Fully administered the estate of the decedent by making payment, settlement or
other disposition of all claims that were presented, expenses of administration and
estate, inheritance and other death taxes, except as specified in the statement, and that
the assets of the estate have been distributed to the persons entitled. If any claims
remain undischarged, the statement shall state whether the personal representative has
distributed the estate subject to possible liability with the agreement of the
distributees or it shall state in detail other arrangements which have been made to
accommodate outstanding liabilities.
3. Sent a copy of the statement to all distributees of the estate and to all
creditors or other claimants of whom the personal representative is aware whose claims
are neither paid nor barred and has furnished a full account in writing of the personal
representative's administration to the distributees whose interests are affected thereby,
including guardians ad litem appointed pursuant to section 14-1403, paragraph 4,
conservators and guardians.
B. If no proceedings involving the personal representative are pending in the court
one year after the closing statement is filed, the appointment of the personal
representative terminates.
14-3934 Liability of distributees to claimants
After assets of an estate have been distributed and subject to section 14-3936, an
undischarged claim not barred may be prosecuted in a proceeding against one or more
distributees. No distributee shall be liable to claimants for amounts received as exempt
property, allowance in lieu of homestead or family allowance, or for amounts in excess of
the value of his distribution as of the time of distribution. As between distributees,
each shall bear the cost of satisfaction of unbarred claims as if the claim had been
satisfied in the course of administration. Any distributee who shall have failed to
notify other distributees of the demand made upon him by the claimant in sufficient time
to permit them to join in any proceeding in which the claim was asserted against him
loses his right of contribution against other distributees.
14-3935 Limitations on proceedings against personal representative
Unless previously barred by adjudication and except as provided in the closing
statement, the rights of successors and of creditors whose claims against the personal
representative for breach of fiduciary duty have not otherwise been barred are barred
unless a proceeding to assert the same is commenced within six months after the filing of
the closing statement. The rights thus barred do not include rights to recover from a
personal representative for fraud, misrepresentation or inadequate disclosure related to
the settlement of the decedent's estate.
14-3936 Limitations on actions and proceedings against distributees
A. Unless previously adjudicated in a formal testacy proceeding or in a proceeding
settling the accounts of a personal representative or otherwise barred, the claim of a
claimant, other than a creditor of the decedent, to recover from a distributee who is
liable to pay the claim, and the right of an heir or devisee or of a successor personal
representative acting in an heir's or devisee's behalf, to recover property improperly
distributed or its value from any distributee is forever barred at the later of three
years after the decedent's death or one year after the time of distribution.
B. All claims of the decedent's creditors against distributees are barred after the
limitations period for the presentation of claims of the decedent's creditors pursuant to
section 14-3803.
C. This section does not bar an action to recover property or value received as the
result of fraud.
14-3937 Certificate discharging liens securing fiduciary performance
After his appointment has terminated, the personal representative, his sureties or
any successor of either, upon the filing of a verified application showing, so far as is
known by the applicant, that no action concerning the estate is pending in any court, is
entitled to receive a certificate from the registrar that the personal representative
appears to have fully administered the estate in question. The certificate evidences
discharge of any lien on any property given to secure the obligation of the personal
representative in lieu of bond or any surety, but does not preclude action against the
personal representative or the surety.
14-3938 Subsequent administration
If other property of the estate is discovered after an estate has been settled and
the personal representative has been discharged or after one year after a closing
statement has been filed, the registrar, if the original application was or could have
been brought under article 3 of this chapter, or the court, if the original petition was
required to have been brought under article 4 or 5 of this chapter, on the application or
petition of any interested person and on notice as provided in this chapter, may appoint
the same or a successor personal representative to administer the subsequently discovered
estate. If a new appointment is made, unless the court orders otherwise, the provisions
of this title apply as appropriate, but a claim previously barred may not be asserted in
the subsequent administration.
14-3951 Effect of approval of agreements involving trusts, inalienable interests, or interests of third persons
A compromise of any controversy as to admission to probate of any instrument offered
for formal probate as the will of a decedent, the construction, validity or effect of any
probated will, the rights or interests in the estate of the decedent, of any successor,
or the administration of the estate, if approved in a formal proceeding in the court for
that purpose, is binding on all the parties thereto including those unborn, unascertained
or who could not be located. An approved compromise is binding even though it may affect
a trust or an inalienable interest. A compromise does not impair the rights of creditors
or of taxing authorities who are not parties to it.
14-3952 Procedure for securing court approval of compromise
The procedure for securing court approval of a compromise is as follows:
1. The terms of the compromise shall be set forth in an agreement in writing which
shall be executed by all competent persons and parents acting for any minor child having
beneficial interests or having claims which will or may be affected by the
compromise. Execution is not required by any person whose identity cannot be ascertained
or whose whereabouts is unknown and cannot reasonably be ascertained.
2. Any interested person, including the personal representative or a trustee, then
may submit the agreement to the court for its approval and for execution by the personal
representative, the trustee of every affected testamentary trust and other fiduciaries
and representatives.
3. After notice to all interested persons or their representatives, including the
personal representative of the estate and all affected trustees of trusts, the court, if
it finds that the contest or controversy is in good faith and that the effect of the
agreement upon the interests of persons represented by fiduciaries or other
representatives is just and reasonable, shall make an order approving the agreement and
directing all fiduciaries under its supervision to execute the agreement. Minor children
represented only by their parents may be bound only if their parents join with other
competent persons in execution of the compromise. Upon the making of the order and the
execution of the agreement, all further disposition of the estate is in accordance with
the terms of the agreement.
14-3971 Collection of personal property by affidavit; ownership of vehicles; affidavit of succession to real property
A. At any time after the death of a decedent, any employer owing wages, salary or
other compensation for personal services of the decedent shall pay to the surviving
spouse of the decedent the amount owing, not in excess of five thousand dollars, on being
presented an affidavit made by or on behalf of the spouse stating that the affiant is the
surviving spouse of the decedent, or is authorized to act on behalf of the spouse, and
that no application or petition for the appointment of a personal representative is
pending or has been granted in this state or, if granted, the personal representative has
been discharged or more than one year has elapsed since a closing statement has been
filed.
B. Thirty days after the death of a decedent, any person indebted to the decedent
or having possession of tangible personal property or an instrument evidencing a debt,
obligation, stock or chose in action belonging to the decedent shall make payment of the
indebtedness or deliver the tangible personal property or an instrument evidencing a
debt, obligation, stock or chose in action to a person claiming to be the successor of
the decedent upon being presented an affidavit made by or on behalf of the successor and
stating that all of the following are true:
1. Thirty days have elapsed since the death of the decedent.
2. Either:
(a) An application or petition for the appointment of a personal representative is
not pending and a personal representative has not been appointed in any jurisdiction and
the value of all personal property in the decedent's estate, wherever located, less liens
and encumbrances, does not exceed fifty thousand dollars as valued as of the date of
death.
(b) The personal representative has been discharged or more than one year has
elapsed since a closing statement has been filed and the value of all personal property
in the decedent's estate, wherever located, less liens and encumbrances, does not exceed
fifty thousand dollars as valued as of the date of the affidavit.
3. The claiming successor is entitled to payment or delivery of the property.
C. A transfer agent of any security shall change the registered ownership on the
books of a corporation from the decedent to the successor or successors on presentation
of an affidavit pursuant to subsection B of this section.
D. The motor vehicle division shall transfer title of a motor vehicle from the
decedent to the successor or successors on presentation of an affidavit as provided in
subsection B of this section and on payment of the necessary fees.
E. No sooner than six months after the death of a decedent, a person or persons
claiming as successor or successors to the decedent's interest in real property,
including any debt secured by a lien on real property, may file in the court in the
county in which the decedent was domiciled at the time of death, or if the decedent was
not domiciled in this state then in any county in which real property of the decedent is
located, an affidavit describing the real property and the interest of the decedent in
that property and stating that all of the following are true and material and
acknowledging that any false statement in the affidavit may subject the person or persons
to penalties relating to perjury and subornation of perjury:
1. Either:
(a) An application or petition for the appointment of a personal representative is
not pending and a personal representative has not been appointed in any jurisdiction and
the value of all real property in the decedent's estate located in this state, less liens
and encumbrances against the real property, does not exceed fifty thousand dollars as
valued at the date of death. The value of the decedent's interest in that real property
shall be determined from the full cash value of the property as shown on the assessment
rolls for the year in which the decedent died, except that in the case of a debt secured
by a lien on real property the value shall be determined by the unpaid principal balance
due on the debt as of the date of death.
(b) The personal representative has been discharged or more than one year has
elapsed since a closing statement has been filed and the value of all real property in
the decedent's estate, wherever located, less liens and encumbrances, does not exceed
fifty thousand dollars as valued as of the date of the affidavit. The value of the
decedent's interest in that real property is determined from the full cash value of the
property as shown on the assessment rolls for the year in which the affidavit is given,
except that if a debt is secured by a lien on real property, the value is determined by
the unpaid principal balance due on the debt as of the date of the affidavit.
2. Six months have elapsed since the death of the decedent as shown in a certified
copy of the decedent's death certificate attached to the affidavit.
3. Funeral expenses, expenses of last illness, and all unsecured debts of the
decedent have been paid.
4. The person or persons signing the affidavit are entitled to the real property by
reason of the allowance in lieu of homestead, exempt property or family allowance, by
intestate succession as the sole heir or heirs, or by devise under a valid last will of
the decedent, the original of which is attached to the affidavit or has been probated.
5. No other person has a right to the interest of the decedent in the described
property.
6. No federal or ARIZONA estate tax is due on the decedent's estate.
F. The normal filing fee shall be charged for the filing of an affidavit under
subsection E of this section unless waived by the court as provided by section 12-301 or
12-302. On receipt of the affidavit and after determining that the affidavit is
complete, the registrar shall cause to be issued a certified copy of the affidavit
without attachments, and the copy shall be recorded in the office of the recorder in the
county where the real property is located.
G. Nothing in this section shall limit the rights of heirs and devisees under
section 14-3901.
14-3972 Effect of affidavit
A. The person paying, delivering, transferring or issuing personal property or the
evidence thereof pursuant to affidavit is discharged and released to the same extent as
if he dealt with a personal representative of the decedent. He is not required to see to
the application of the personal property or evidence thereof or to inquire into the truth
of any statement in the affidavit. If any person to whom an affidavit is delivered
refuses to pay, deliver, transfer or issue any personal property or evidence thereof, it
may be recovered or its payment, delivery, transfer or issuance compelled upon proof of
their right in a proceeding brought for the purpose by or on behalf of the persons
entitled thereto. Any person to whom payment, delivery, transfer or issuance is made is
answerable and accountable therefor to any personal representative of the estate or to
any other person having a superior right.
B. The motor vehicle division issuing title pursuant to affidavit is discharged and
released to the same extent as if it dealt with a personal representative of the
decedent. It is not required to see to the application of the personal property or
evidence thereof or to inquire into the truth of any statement in the affidavit.
C. A purchaser of real property from or lender to the person or persons designated
as successor or successors in a certified copy of an affidavit issued under section
14-3971 and recorded in the county in which the real property is located is entitled to
the same protection as a person purchasing from or lending to a distributee who has
received a deed of distribution from a personal representative, as provided in section
14-3910.
14-3973 Small estates; summary administrative procedure
If it appears from the inventory and appraisal that the value of the entire estate,
less liens and encumbrances, does not exceed allowance in lieu of homestead, exempt
property, family allowance, costs and expenses of administration, reasonable funeral
expenses, and reasonable and necessary medical and hospital expenses of the last illness
of the decedent, the personal representative, without giving notice to creditors, may
immediately disburse and distribute the estate to the persons entitled thereto and file a
closing statement as provided in section 14-3974.
14-3974 Small estates; closing by sworn statement of personal representative
A. Unless prohibited by order of the court and except for estates being
administered by supervised personal representatives, a personal representative may close
an estate administered under the summary procedures of section 14-3973 by filing with the
court, at any time after disbursement and distribution of the estate, a verified
statement stating that:
1. To the best knowledge of the personal representative, the value of the entire
estate, less liens and encumbrances, did not exceed allowance in lieu of homestead,
exempt property, family allowance, costs and expenses of administration, reasonable
funeral expenses and reasonable, necessary medical and hospital expenses of the last
illness of the decedent.
2. The personal representative has fully administered the estate by disbursing and
distributing it to the persons entitled thereto.
3. The personal representative has sent a copy of the closing statement to all
distributees of the estate and to all creditors or other claimants of whom he is aware
whose claims are neither paid nor barred and has furnished a full account in writing of
his administration to the distributees whose interests are affected.
B. If no actions or proceedings involving the personal representative are pending
in the court one year after the closing statement is filed, the appointment of the
personal representative terminates.
C. A closing statement filed under this section has the same effect as one filed
under section 14-3933.
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