In re Estate of Brenner

• Decision Date: 20 November 2015
• Docket Number: No. 113,288.,113,288.
• Citation: 52 Kan.App.2d 71,362 P.3d 30
• Parties: In the Matter of the ESTATE OF Earlene F. BRENNER, Deceased.
• Court: Kansas Court of Appeals

52 Kan.App.2d 71
362 P.3d 30

In the Matter of the ESTATE OF Earlene F. BRENNER, Deceased.

No. 113,288.

Court of Appeals of Kansas.

Nov. 20, 2015.
Review Granted Dec. 15, 2016.

Keen K. Brantley, of Wallace, Brantley & Shirley, of Scott City, for appellant.

Fred J. Logan, Jr., of Logan, Logan & Watson, L.C., of Prairie Village, and Joseph B. Bain, of Cure & Bain, P.C., of Goodland, for appellee.

Before PIERRON, P.J., BRUNS and SCHROEDER, JJ.

SCHROEDER, J.

52 Kan.App.2d 71

As heir-at-law of Earlene F. Brenner, Beverly Goodman petitioned for administration of her mother's estate more than 6 months after the date of her death, alleging there were assets to be marshaled and administered. Beverly's brother, Danny Brenner, objected to the petition claiming there were no assets in the estate and that Beverly's petition was really a claim against the estate barred by the 6–month nonclaims statute, K.S.A. 59–2239. The district court granted Danny's motion to dismiss finding there

52 Kan.App.2d 72

were no substantial assets subject to administration. On appeal, we treat Danny's motion to dismiss as a motion for summary judgment and find there are material facts at issue—whether there are assets owned by Brenner subject to administration—and reverse the district court's decision to deny Beverly's petition for administration. Reversed and remanded with directions.

FACTS

Brenner died on January 26, 2014, and was survived by three adult children, Danny, Darrel, and Beverly. Danny lived in Goodland, and Darrel and Beverly were residents of Arizona. On August 18, 2014, Beverly filed a petition for issuance of letters of administration. She alleged Brenner died intestate and the value of her estate was estimated at $100,000 for real estate with probable income of $4,000 and also personal property estimated at $140,000. She claimed her appointment as administrator was necessary for the collection, conservation, and administration of the estate.

Danny objected to the issuance of letters of administration. He claimed Beverly's petition was, in essence, a claim against the estate and barred by the 6–month nonclaim statute of limitation. Danny also argued Brenner's estate did not have any substantial assets because the Texas real estate had been deeded to him approximately 3 years prior to Brenner's death, and the remaining bank accounts had passed to him pursuant to payable-on-death designations set up approximately 3 years earlier. Danny claimed that after their mother's death, by agreement, the three heirs divided and distributed the remaining tangible personal property held in storage.

362 P.3d 32

The district court set the matter for hearing. Danny explained that after Brenner's death, the heirs had discussed the actions taken during Brenner's lifetime in order to avoid the formal probate process through pre-death transfers and payable on death accounts, thus, leaving minimal assets to distribute. Danny's district court brief claimed: "While Darrell and Beverly expressed some level of frustration with the fact that Dan Brenner was a primary beneficiary of non-probate transfers, they seemingly acknowledged the closer relationship between Dan and his mother and did not express any intent to challenge the non-probate transfers."

52 Kan.App.2d 73

Beverly countered her petition for administration was not statutorily barred because a claim is a creditor demand for payment of the debts of the decedent, whereas a petition for issuance of letters of administration is filed to open administration of the decedent's estate. Beverly stated she was not a creditor and the 6–month nonclaim statute did not apply. She argued there was no statute of limitations against filing a petition for issuance of letters of administration if the petitioner is not a creditor attempting to collect a debt from the decedent's estate. Beverly concluded that she did not want to "put the cart before the horse" in pointing out there are issues over the transfer of Brenner's property that can be resolved only by granting letters of administration and appointing an administrator who will have standing to carry out collection, conservation, and administration of the estate. After filing the petition for administration, Beverly also alleged for the first time that Brenner had a last will and testament but provided no support for this declaration.

In denying Beverly's petition, the district court first addressed her claim that Brenner had a last will and testament. The court adopted Danny's rationale that no evidence of Brenner's will had been presented. Danny directed the court to the fact that Beverly's petition specifically alleged: "Brenner died intestate in Sherman County," and without a will. Brenner died on January 26, 2014, but Beverly did not file her petition until August 18, 2014. The court held: "The failure to file the will as mandated by statute within the six month time period precludes the court from now considering the will."

The district court also denied the issuance of letters of administration because Brenner's estate did not have substantial assets to administer. It did not decide the issue based on failure to timely file the claim. The court held:

"The more problematic issue is that of delivery of the deed as prescribed by Kansas and Texas law. Since the property and mineral interest rest in Texas it would appear Texas law would control. Thus, the affidavit of counsel in Texas persuades the court that the transfer was valid and effective.

"Since no evidence was presented that reflected that the estate of Earlene F. Brenner now has any substantial assets in it to administer. The request by Petitioner to this court to issue Letters of Administration is denied."

Beverly appeals.

52 Kan.App.2d 74

ANALYSIS

Should Beverly's petition for issuance of letters of administration be granted?

Beverly argues the issue in this case has nothing to do with filing a claim and is simply whether the district court erred in denying the petition for issuance of letters of administration. She argues all the other issues are secondary to simply opening an estate. On this point we agree with Beverly.

Danny asked the court to dismiss Beverly's petition. Under K.S.A.2014 Supp. 60–212(d), a motion to dismiss for failure to state a claim under K.S.A.2014 Supp. 60–212(b)(6) is treated like a motion for summary judgment if matters outside the pleadings are presented to, and not excluded by, the court. In this case, the trial court considered the parties' briefs, arguments, and documents. It is evident from the district court's memorandum decision and order dismissing the case that the court did consider matters outside of the pleadings in making its ruling, effectively converting Danny's request for dismissal to one for summary judgment. We must determine if the district court's decision can be

362 P.3d 33

affirmed under the standards governing summary judgments. See Davidson v. Denning, 259 Kan. 659, 667, 914 P.2d 936 (1996) (though the district court's decision did not expressly state it considered defendants' motion to dismiss as summary judgment motion, the Court of Appeals properly treated it as such because "the court clearly considered matters beyond the face of the petition in granting the motion").

Accordingly, the well-known standard of review governing summary judgment applies. This standard provides that summary judgment is appropriate only where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Waste Connections of Kansas, Inc. v. Ritchie Corp., 296 Kan. 943, 962, 298 P.3d 250 (2013). The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought.

52 Kan.App.2d 75

When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and, where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274–75, 38 P.3d 679 (2002).

Petition to Open an Estate

Kansas statutes are written to include a broad class of petitioners who may petition to open a decedent's estate. K.S.A. 59–2221 provides a general probate inclusion: "Any person interested in the estate, after the death of the testator or intestate, may petition for the probate of his or her will or for administration."

"There is no provision of the probate code fixing a limitation on the time an heir may apply for

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