Wednesday, February 10, 2021
Kansas Supreme Court: “Any Person” Means What It Says In Double Penalty Probate Statute For Conversion Of Decedent’s Property
In In re Estate of Taylor, "the Kansas Supreme Court interpreted the plain language of the Kansas Probate Code’s conversion statute to determine that the double penalty provision for conversion of a decedent’s assets applies to any person who converts assets, not just the appointed executor or administrator."
Thelma Taylor died testate in November 2015. Laura Kelly was named as executor in Thelma's will which directed that the executor "shall have absolute discretion to distribute any personal property not disposed of [by separate writing] or to sell all remaining property and add to the residue of my estate which shall then be paid in [its] entirety to the Boys and Girls Club of Atchison, Kansas."
Kelly filed a petition to admit the will to probate. The petition stated that the estate included household furnishings and life insurance proceeds worth $1000 and $8300 respectively. The petition for informal administration was granted and Kelly was granted letters testamentary.
The Boys and Girls Club then moved for a supplemental inventory, which valued the estate assets to a little over $12,000. It also valued non-probate assets which included a checking account with $150 and $11,000 cash located in a safe deposit box. The cash in the deposit box were described as "[j]ointly owned with Laura Kelly as joint tenants with the right of survivorship."
Kelly later petitioned for a final settlement granting the Club the amount leftover after paying debts and expenses, which would leave the Club with about $500.
The Club objected to this amount and alleged that Kelly should be held liable for double the value of any converted property.
The District Court held that Kelly wrongfully converted the safety deposit box's contents and breached her duties as Thelma's personal representative. The court ordered Kelly to pay $22,000, which is double the amount of the converted property ($11,000 in cash).
The Court of Appeals found that Kelly converted the property, "but divided over the double penalty."
Under K.S.A. 59-1704, "any person that. . . converts. . . any personal property of a decedent or conservatee, such person shall be liable for double the value of property. . . converted."
The Kansas Supreme Court ultimately held that K.S.A. 59-1704 applies to any person, even appointed fiduciaries.
Essentially, "You cannot convert estate assets prior to being appointed as executor and be exempt from the double penalty provision of the Kansas Probate Code’s conversion statute."
See Kansas Supreme Court: “Any Person” Means What It Says In Double Penalty Probate Statute For Conversion Of Decedent’s Property, Probate Stars, February 4, 2021.