Printable Format59-1401. Possession of property by executor or administrator; marshaling assets; duties prior to final distribution. The executor or administrator shall: (a) Have a right to the possession of all the property of a resident decedent, except the homestead and allowances to the surviving spouse and minor children; (b) marshal all tangible personal property owned by a resident decedent located in the state of Kansas and all intangible personal property owned by a resident decedent wherever located, either directly or by ancillary administration; (c) take possession, within six months from the date of appointment, of all tangible personal property located in this state and all intangible property wherever located, to be held, administered and finally distributed as provided by law, but nothing herein shall require an executor or administrator of a resident decedent to take possession of intangible personal property being administered in another jurisdiction, if the court in which such administration is pending refuses to authorize delivery of possession; (d) pay the taxes and collect the rents and earnings on the property until the estate is settled or until delivered by order of the court to the heirs, devisees and legatees; and (e) keep in tenantable repair the buildings and fixtures under the executor's or administrator's control and may protect them by insurance. The executor or administrator, alone or with the heirs or devisees, may maintain an action for the possession of the real estate or to quiet title to it.
History: L. 1939, ch. 180, § 99; L. 1957, ch. 321, § 2; L. 1967, ch. 314, § 10; L. 1972, ch. 215, § 9; L. 1985, ch. 191, § 20; July 1.
Source or prior law:
22-326, 22-503, 22-736, 22-738, 22-739.
Cross References to Related Sections:
Procedure to procure order of delivery to heirs, devisees and legatees before final settlement, see 59-2201 et seq.
Law Review and Bar Journal References:
Annotation No. 14 discussed in comment on probate jurisdiction, 1 K.L.R. 329, 336 (1953).
Constitutionality of 1957 amendment discussed in 1956-57 survey of law of administration of estates, Richard C. Harris, 6 K.L.R. 123 (1957).
Constitutionality discussed in 1957-59 survey of law of administration of estates, Richard C. Harris, 8 K.L.R. 185, 187 (1959).
"Accounting for Decedents' Estates and Trusts in Kansas," W. Keith Weltmer, 34 J.B.A.K. 13 (1965).
Survey of Kansas nonresident estate administration, Richard C. Harris, 17 K.L.R. 325 (1969).
1965-69 survey of estate planning and future interests, James K. Logan, 17 K.L.R. 455, 495 (1969).
"The Ultimate Burden of The Federal Estate Tax in Kansas—A Dilemma for Executors," Austin Nothern and John H. Wachter, 17 W.L.J. 231, 256 (1978).
Attorney General's Opinions:
Eligibility requirements for social welfare recipients; claims against estates of certain recipients. 92-156.
CASE ANNOTATIONS
1. Discussed in determining probate court's equitable jurisdiction; exclusive jurisdiction. Foss v. Wiles, 155 Kan. 262, 269, 124 P.2d 438.
2. Powers of executor named in will limited until appointed by court and qualified. In re Estate of Grattan, 155 Kan. 839, 851, 130 P.2d 580.
3. District court has original jurisdiction of administrator's action to quiet title. Kininmonth v. Carson, 156 Kan. 808, 818, 137 P.2d 173.
4. Right of executor to bring partition action in district court determined. Sheedy v. Willoughby, 157 Kan. 508, 511, 512, 142 P.2d 801.
5. Cited; district court without original jurisdiction to determine validity of will. Asendorf v. Asendorf, 162 Kan. 310, 315, 176 P.2d 535.
6. District court without jurisdiction of heir's action to partition real estate, when. Felton v. Rubow, 163 Kan. 82, 84, 179 P.2d 935.
7. Heir's suit to set aside decedent's deed; probate court's jurisdiction exclusive. Houdashelt v. Sweet, 163 Kan. 97, 103, 180 P.2d 604.
8. District court has jurisdiction of actions to bring property into estate. In re Estate of Thompson, 164 Kan. 518, 523, 190 P.2d 879.
9. Probate court's jurisdiction exclusive to determine title to real estate in decedent's estate. Wright v. Rogers, 167 Kan. 297, 300, 205 P.2d 1010.
10. Probate court's jurisdiction to authorize sale of decedent's realty is limited; statutes construed. Magaw v. Emick, 167 Kan. 580, 585, 207 P.2d 488.
11. Heirs alone cannot maintain action to collect assets; executor or administrator necessary. Waldorf v. Waldorf, 168 Kan. 690, 694, 215 P.2d 149.
12. Devisee of land held entitled to gravel sale proceeds after testator's death. In re Estate of Cline, 170 Kan. 496, 503, 227 P.2d 157.
13. Administrator may revive decedent's quiet title action in district court. Collins v. Richardson, 171 Kan. 152, 156, 158, 230 P.2d 1018.
14. Administrator may maintain district court action to obtain possession of decedent's realty. Lanning v. Goldsberry, 171 Kan. 292, 293, 232 P.2d 611.
15. Discussed; lessee's vested oil lease not a demand against decedent's estate. Harding v. Continental Pipe Line Co., 172 Kan. 724, 730, 243 P.2d 199.
16. Decedent's property; administrator has only right of possession during administration. Peterson v. Peterson, 173 Kan. 636, 639, 251 P.2d 221.
17. Executrix accountable for rents from property devised to her, when; part of assets of estate. In re Estate of Jones, 174 Kan. 506, 512, 257 P.2d 116.
18. Action to bring property into estate must be brought in district court. In re Estate of Weaver, 175 Kan. 284, 287, 262 P.2d 818.
19. Applied; action to adjudicate title to realty. In re Estate of Slaven, 177 Kan. 185, 189, 277 P.2d 580.
20. Claim seeking recovery of real estate construed as claim for services. In re Estate of Ray, 180 Kan. 634, 637, 306 P.2d 190.
21. Heirs may not maintain action to recover property into estate. Newcom, Administrator v. Potterf, 182 Kan. 73, 75, 76, 318 P.2d 1069.
22. Action to bring assets into estate; jurisdiction of action to get something out of an estate is exclusively in probate court; causes of action improperly joined in district court. Weaver, Administrator v. White, 190 Kan. 291, 292, 296, 297, 298, 374 P.2d 219.
23. Jurisdiction of action to bring property into estate is in the district court; quiet title action. Bell v. Hanes, 190 Kan. 765, 769, 770, 378 P.2d 13.
24. Possession of personal property required of executor or administrator hereunder, but possession of real property permissive. Riling, Executor v. Cain, 199 Kan. 259, 261, 262, 263, 429 P.2d 789.
25. Cited in holding that crops growing on the homestead are beyond the reach of the decedent's executor or administrator. In re Estate of Johnson, 202 Kan. 684, 700, 452 P.2d 286.
26. Until estate is settled, executor has only permissive right to possession of decedent's real estate, but possessory rights of devisee are not excluded until executor has asserted his right to possession. In re Estate of Countryman, 203 Kan. 731, 734, 457 P.2d 53.
27. Applied; court did not err in authorizing executor to bring suit on alleged claim or in authorizing appeal from adverse verdict. Murdock v. First National Bank, 220 Kan. 459, 467, 553 P.2d 876.
28. Executor has right to possession of all decedent's property except homestead and allowances to surviving spouse and children; may maintain action for possession of decedent's real estate without prior approval of probate court. Boldridge v. Estate of Keimig, 222 Kan. 280, 283, 284, 564 P.2d 497.
29. Where jurisdiction ceded to Kansas, demands on personal property filed after six months of first publication notice by K.S.A. 59-2239. Young v. Wheeler, 234 Kan. 845, 849, 676 P.2d 748 (1984).
30. No conflict between administrator's right to possession and secured creditor's right (K.S.A. 59-1303) to self-help repossession (K.S.A. 84-9-503). Parker v. Farmway Credit Union, 11 Kan. App. 2d 223, 225, 718 P.2d 643 (1986).
31. Decedent's assets wrongfully transferred, nonclaim statute no bar to marshaling assets by executor. Estate of Draper v. Bank of America, 288 Kan. 510, 205 P.3d 698 (2009).