                                         No. 113,288

              IN THE COURT OF APPEALS OF THE STATE OF KANSAS

              In the Matter of the Estate of EARLENE F. BRENNER, Deceased.


                               SYLLABUS BY THE COURT


1.
       K.S.A. 59-2221 provides that "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."


2.
       The probate code does not fix a time limitation on when an heir may apply for
administration of any estate in which he or she has an interest.


3.
       K.S.A. 59-2239 imposes a special statute of limitation governing claims against a
decedent's estate, and it operates as a complete bar to all demands against a decedent's
estate that are not timely filed.


4.
       K.S.A. 59-617 is a special statute of limitations requiring the filing of a petition to
admit a will to probate within 6 months after a resident testator's death.


5.
       An administrator's function upon appointment is to marshal the assets and manage
the estate.




                                               1
        Appeal from Sherman District Court; SCOTT SHOWALTER, judge. Opinion filed November 20,
2015. Reversed and remanded with directions.


        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.: 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 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




                                                    2
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.


       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."


       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


                                               3
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.




                                                     4
                                         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 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


                                              5
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. 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 administration of any estate in which he [or she] has an interest. The legislature
       has seen fit to make a provision fixing the time in which creditors must apply for
       administration (G.S. 1947 Supp. 59-2239) fixing the time for probate of a written will
       (59-617 and 618) and for the probate of an oral will (59-619) and had it intended any
       limitation on an heir seeking administration of an estate in which he [or she] had an
       interest it could have done so. It seems significant that it did not do so." In re Estate of
       Wright, 170 Kan. 400, 406, 227 P.2d 331 (1951).


       Danny argues K.S.A. 59-2239 controls and limits the time in which demands and
claims may be filed against an estate, and the statute has long been considered a probate
nonclaim statute. Harris, Survey of Kansas Law: Administration of Estates, 17 Kan. L.
Rev. 325, 328 (1968). K.S.A. 59-2239 operates as a complete bar to all demands against
a decedent's estate that are not timely filed. 17 Kan. L. Rev. at 328. "A nonclaim statute is


                                                      6
a self-contained statute which absolutely prohibits the initiation of litigation based on it
after a prescribed period." 51 Am. Jur. 2d, Limitation of Actions § 3, pp. 490-91.


       Danny argues Beverly's petition is a claim against the estate and should be barred
by the nonclaims statute, K.S.A. 59-2239. Beverly again responds she is asking only to
open the estate for administration. Danny presents Nelson v Nelson, 288 Kan. 570, 205
P.3d 715 (2009), to support his position. In Nelson, the court considered the question of
whether a claim must be made against a decedent's estate when it is alleged the decedent
breached a contract to place his entire estate in a testamentary trust for the benefit of his
adult children. The Court of Appeals in Nelson v. Nelson, 38 Kan. App. 2d 64, 162 P.3d
43 (2007), held the decedent's assets were not subject to a constructive trust because a
claim had not been made against the decedent's estate within the period of limitations
imposed by the nonclaim statute, K.S.A. 59-2239. In affirming, the Nelson court
recognized the broad reach of the nonclaim statute:


                 "The nonclaim statute recognizes that a decedent no longer has the individual
       capacity to respond in damages to torts, to pay debts, to carry out contracts, or to
       administer his or her estate; therefore, the estate must meet the decedent's financial
       obligations. In re Estate of Reynolds, 266 Kan. 449, 456-57, 970 P.2d 537 (1998). As a
       result, a person who seeks to recover from the decedent, whether based on tort, contract,
       the decedent's will, or the statute of intestate succession, must recover, if at all, from the
       decedent's estate. 266 Kan. at 456-57; Burns v. Drake, 157 Kan. 367, 369-72, 139 P.2d
       386 (1943).
                 "K.S.A. 59-2239 imposes a special statute of limitations governing such claims
       against a decedent's estate, and it operates as a complete bar to all demands against a
       decedent's estate that are not timely filed. [Citation omitted.]" Nelson v. Nelson, 288 Kan.
       at 591.


       The Nelson court found the heirs' contract claim was barred by the nonclaim
statute.



                                                      7
               "This policy has been furthered by cases that have read the term 'all demands' to
       be broadly inclusive of any and all claims, making exception only where a statute
       expressly provides otherwise. Union Nat'l Bank & Trust Co., 233 Kan. 671, Syl. ¶ 2. One
       statutory exception is found in K.S.A. 59-2239(2); that exception extends the statute of
       limitations for tort claims. Because we have concluded that the Appellants failed to plead
       fraud and the Appellants do not suggest they have pled any other tort, the tort exception
       does not apply. There is no similar exception for contract claims; such claims must be
       brought within the nonclaim period of K.S.A. 59-2239(1)." Nelson, 288 Kan. at 592.


       While we agree one of the primary purposes of K.S.A. 59-2239 is finality, we do
not believe the statute applies to the facts of this case. Beverly's petition is not a claim
against the estate, it is a petition to administer whatever assets there may be in the estate
and to see that they are assigned to the right heir according to law. The Kansas Supreme
Court explained the distinction in Nelson when it compared and contrasted In re Estate of
Wright, 170 Kan. at 400, with In re Estate of Pallister, 13 Kan. App. 2d 337, 339, 770
P.2d 494 (1989). The court explained that a petition requesting administration of assets
not administered is not a claim; however, a petition alleging assets were not in the estate
because a transfer of title was void due to breach of contract, for example, is a claim and
time barred by the nonclaim statute. Nelson, 288 Kan. at 596.


       We also agree the time to file a will passed on July 27, 2014, no timely petition to
admit a will was filed, and Beverly's allegation of a will has no merit. K.S.A. 59-617
establishes the general rule. The statute provides in its entirety: "No will of a testator who
died while a resident of this state shall be effectual to pass property unless a petition is
filed for the probate of such will within six months after the death of the testator, except
as hereinafter provided." Simply put, K.S.A. 59-617 functions as a statute of limitations
prohibiting the admission of a will to probate more than 6 months after a testator's death.
In re Estate of Reed, 157 Kan. 602, 607-08, 142 P.2d 824 (1943) (holding the then 1-year
time limitation in G.S. 1941 Supp. 59-617 to be a statute of general limitation); In re
Estate of Tracy, 36 Kan. App. 2d 401, 406, 140 P.3d 1045 (2006) (K.S.A. 59-617 is a


                                                   8
statute of limitations); compare K.S.A. 59-618 (savings provision for innocent
beneficiaries of wills improperly withheld). Thus, no will was timely offered by Beverly
or anyone else, and Beverly's petition for administration shall proceed as an intestate
proceeding as it was originally filed.


       Here, Beverly's petition is seeking the right to administer the estate, not file a
claim against the estate. The case of Wright, 170 Kan. 400, is squarely on point. In
Wright, one of the heirs petitioned for administration of the estate to have real estate
administered as part of the estate. One of the property owners objected claiming the
petition to administer the estate was really an out-of-date petition for a claim against the
estate that was barred by K.S.A. 59-2239. The Kansas Supreme Court denied the
objection and found it was not a claim against the estate but was an action by the heirs-at-
law seeking the administration of assets not yet administered. Wright, 170 Kan. at 406-
07. The facts in Wright are the same as the facts of this case as Beverly is seeking
authority to administer this estate and to find out if there are any assets that need to be
administered for the benefit of the estate and its heirs. Clearly, this is an action by
Beverly asking for authority to marshal the assets of the estate, if any. An action to
marshal assets does not invoke the nonclaim statute. See Estate of Draper v. Bank of
America, 288 Kan. 510, 532, 205 P.3d 698 (2009) (in such cases the nonclaim statute
does not apply); Nickel v. Vogel, 76 Kan. 625, 92 P. 1105 (1907) (holding that the
jurisdiction of the probate courts of this state to appoint administrators does not depend
upon the existence of either assets or creditors). Additionally, we note the Supreme
Court's statement in In re Estate of West, where the court said:


       "Although it has been stated in some of our decisions that an object of the probate code is
       to provide for a speedy determination of the assets and liabilities of an estate so that it
       may be settled and a distribution made to the beneficiaries, it is of primary importance
       that all of the assets be collected and reduced to possession for such distribution and a
       contention by a beneficiary that all assets have not been collected ought not to be held




                                                      9
       barred in the absence of a specific statutory provision to that effect." 169 Kan. 447, 455,
       219 P.2d 418 (1950).


       Clearly, these prior decisions recognize the right of heirs-at-law to petition for the
administration of an estate to make sure all of the assets of the estate are marshaled and
distributed in accordance with the laws of intestate distribution. See K.S.A. 59-506.


       We need not address Danny's claim that Beverly is attempting to attack the
validity of the transfers made prior to Brenner's death. If that issue arises, it will be an
issue for the district court to resolve, not for us to resolve in anticipation of what an
administrator might or might not do. We also pause to note that Beverly waited more than
6 months to file her petition for administration. As previously mentioned, we can find no
statutory bar to this action. By waiting more than 6 months to file her petition, she
eliminated the need to notify creditors or the opportunity for creditors to file a claim
against the estate because the 6-month nonclaim statute had run as to all claims against
the estate. See K.S.A. 59-2239. The petition for administration is timely filed.


       We recognize Danny's claims that there are no assets for an administrator to
marshal as he claims they were all delivered to him through nonprobate transfers prior to
Brenner's death, except the personal property already divided by the three heirs at the
storage unit. That may be true, but without an administrator appointed and acting under
the supervision and guidance of the district court, Danny's claim cannot be verified. An
administrator duly appointed would have authority to search for any assets owned by
Brenner at the time of her death. If there are assets, then the estate can administer the
assets in accordance with the law. If it is found there are no assets, then the estate can be
closed and no harm is done. Who pays for the cost of administration would be an issue
for the district court to decide at the appropriate time.




                                                    10
       Reversed and remanded with directions for the district court to allow the
appointment of an administrator pursuant to K.S.A. 59-2232.


                                              ***


       PIERRON, J., dissenting: I respectfully dissent. The Kansas Legislature has
provided a statutory framework for the fair and efficient disposition of the estates of
deceased persons. Part of this is providing for time frames during which claims on the
estate assets must be made.


       The majority recognizes that the Kansas statutes are written to include a broad
range of claimants against the 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." However,
the Kansas statutes are equally clear that statutes of limitation are essential to the timely
resolution of a decedent's estate, including presenting claims or a will.


       K.S.A. 59-2239 limits the time in which demands and claims may be filed against
an estate and has long been considered a probate nonclaim statute. Harris, Survey of
Kansas Law: Administration of Estates, 17 Kan. L. Rev. 325, 328 (1968). It operates as a
complete bar to all demands against a decedent's estate that are not timely filed. 17 Kan.
L. Rev. at 328. "A nonclaim statute is a self-contained statute which absolutely prohibits
the initiation of litigation based on it [sic] after a prescribed period." 51 Am. Jur. 2d,
Limitation of Actions § 3, pp. 490-91.


       One of the primary purposes of K.S.A. 59-2239, and the key in this case, is
finality. The nonclaim statute allows the speedy settlement of the decedent's estate in the
interest of creditors, heirs, legatees, and devisees and to settle titles to real estate. In re
Estate of Tracy, 36 Kan. App. 2d 401, 405, 140 P.3d 1045 (2006). It is a bar on which


                                                11
parties may rely. 3 Bartlett, Kansas Probate Law and Practice § 1316, p. 190 (rev. ed.
1953). In In re Estate of Reynolds, 266 Kan. 449, 455, 970 P.2d 537 (1998) (quoting In re
Estate of Watson, 21 Kan. App. 2d 133, Syl. ¶ 5, 896 P.2d 401 [1995]), the court stated:


               "'K.S.A. 59-2239 is a special statute of limitations. The words 'all demands' are
       all-inclusive and include claims and demands of every type and character against a
       decedent's estate except for those particular cases where the statute expressly provides
       otherwise. A party seeking to remove something from a decedent's estate must comply
       with the nonclaim statute in the absence of an express statutory exception such as set
       forth in K.S.A. 59-2239(2).'" (Emphasis added.)


       Further, in Young v. Wheeler, 234 Kan. 845, 851, 676 P.2d 748 (1984) (quoting
Atkinson, Law of Wills § 127, p. 691 [2d ed. 1953]), this court recognized that
legislatures and courts in general have thought "'"it is better policy to deny exceptions to
the bar of the nonclaim statute rather than to impair its final effect by allowing
exceptions, however meritorious."'" The plain language of the nonclaim statute also is
emphasized in 3 Bartlett, Kansas Probate Law and Practice § 1316 (rev. ed. 1953):


       "The language of the nonclaim statute is clear, unambiguous, and comprehensive. Words
       more significant to express every demand to which a personal representative can or ought
       to respond, or which can charge the assets in his hands subject to administration, or more
       expressive of every liability, resting upon the decedent, could not have been employed."


       Similar provisions for speedy and finalization of estates are also found in statutory
provisions concerning the presentation of a will. K.S.A. 59-617 establishes the general
rule. The statute provides in its entirety: "No will of a testator who died while a resident
of this state shall be effectual to pass property unless a petition is filed for the probate of
such will within six months after the death of the testator, except as hereinafter
provided." Simply put, K.S.A. 59-617 functions as a statute of limitations prohibiting the
admission of a will to probate more than 6 months after a testator's death. In re Estate of



                                                   12
Reed, 157 Kan. 602, 607-08, 142 P.2d 824 (1943) (holding the then 1-year time
limitation in G.S. 1941 Supp. 59-617 to be a statute of general limitation); Tracy, 36 Kan.
App. 2d at 406 (K.S.A. 59-617 is a statute of limitations). Compare K.S.A. 59-618
(savings provision for innocent beneficiaries of wills improperly withheld).


       Beverly argues the above provisions for claims against the estate do not apply to
claims by heirs or letters of administration. The caselaw is fuzzy. In Nelson v Nelson, 288
Kan. 570, 205 P.3d 715 (2009), the court considered the question of whether a claim
must be made against a decedent's estate when it is alleged the decedent breached a
contract to place his entire estate in a testamentary trust for the benefit of his adult
children. The district court and the Court of Appeals in Nelson v. Nelson, 38 Kan. App.
2d 64, 162 P.3d 43 (2007), had held that the decedent's assets were not subject to a
constructive trust because a claim had not been made against the decedent's estate within
the period of limitations imposed by the nonclaim statute—K.S.A. 59-2239. In affirming,
the Nelson court recognized the broad reach of the nonclaim statute:


               "The nonclaim statute recognizes that a decedent no longer has the individual
       capacity to respond in damages to torts, to pay debts, to carry out contracts, or to
       administer his or her estate; therefore, the estate must meet the decedent's financial
       obligations. In re Estate of Reynolds, 266 Kan. 449, 456-57, 970 P.2d 537 (1998). As a
       result, a person who seeks to recover from the decedent, whether based on tort, contract,
       the decedent's will, or the statute of intestate succession, must recover, if at all, from the
       decedent's estate. 266 Kan. at 456-57; Burns v. Drake, 157 Kan. 367, 369-72, 139 P.2d
       386 (1943).
               "K.S.A. 59-2239 imposes a special statute of limitations governing such claims
       against a decedent's estate, and it operates as a complete bar to all demands against a
       decedent's estate that are not timely filed. [Citations omitted.]" 288 Kan. at 591.


       The Nelson court found the heirs' contract claim was barred by the nonclaim
statute.



                                                     13
               "This policy has been furthered by cases that have read the term 'all demands' to
       be broadly inclusive of any and all claims, making exception only where a statute
       expressly provides otherwise. Union Nat'l Bank & Trust Co., 233 Kan. 671. One statutory
       exception is found in K.S.A. 59-2239(2); that exception extends the statute of limitations
       for tort claims. Because we have concluded that the Appellants failed to plead fraud and
       the Appellants do not suggest they have pled any other tort, the tort exception does not
       apply. There is no similar exception for contract claims; such claims must be brought
       within the nonclaim period of K.S.A. 59-2239(1)." Nelson, 288 Kan. at 592.


       The majority relies on the above quoted language in Nelson. However, Beverly is
attempting to thwart the likes of Nelson by making a back door argument that she is not
making a claim against the estate, just seeking letters of administration. I am not
convinced. If she had filed a lawsuit against Danny, Nelson would have been completely
on all fours and resolved her claim. Kansas appellate cases are in accord and have
consistently held that an action to enforce an agreement to devise or bequeath a portion of
the decedent's estate constitutes a claim against the estate. In In re Estate of Goodburn,
210 Kan. 740, 746, 504 P.2d 612 (1972), the court held "that where a party seeks to
enforce a contractual obligation to devise or bequeath a portion of a decedent's estate, the
proceeding constitutes a demand against the estate and not a will contest."


       If Beverly's ultimate claim is that the Texas real estate transfer and the payable-on-
death accounts were fraudulent, then her allegation is a claim to bring the property back
into the estate. This is not a case where a party is simply attempting to marshal assets, but
rather an attempt to void transfers where no evidence of illegality or undue influence is
even alleged. See Estate of Draper v. Bank of America, 288 Kan. 510, 205 P.3d 698
(2009). The court in Nelson addressed this head on:


       "[I]f the property is not brought into the estate, recovery may not be allowed. This point
       is illustrated by at least two cases, Houdashelt v. Sweet, 163 Kan. 97, 180 P.2d 604
       (1947), and Wright v. Rogers, 167 Kan. 297, 205 P.2d 1010 (1949). In those cases, this
       court dismissed actions brought by heirs directly against those who held property that had


                                                   14
       been obtained via an allegedly void transfer. Even though the heirs were making claim to
       property outside the estate, in both cases the court found the proceeding against the
       property holder was tantamount to a claim or demand to a portion of the decedent's estate
       and as such had to be filed in the probate court within the time provided by law. In
       Houdashelt, the court explained that the action was based upon fraud and undue
       influence, and if that allegation were true, the land was not legally conveyed and
       therefore remained an asset of the estate. [Houdashelt,] 163 Kan. at 100; see Wright, 167
       Kan. at 302." Nelson, 288 Kan. at 596-97.


       Under the above cited statutes, along with Nelson and Houdashelt, when one
claims property of an estate, the fact that an estate does not exist does "'not relieve [a
family member] or any other person having a claim upon the property of [the] estate from
having an administrator appointed'" under the provisions of K.S.A. 59-2239 and making a
claim against the estate. Gebers v. Marquart, 166 Kan. 604, 609, 610, 203 P.2d 125
(1949); Gantz v. Bondurant, 159 Kan. 389, 394-95, 155 P.2d 450 (1945). The practical
consequence is that appointing of an administrator and filing of the claim must be
performed within the 6-month window following the decedent's death under K.S.A. 59-
2239. Beverly was not within this 6-month window.


       One of Beverly's arguments is that we really do not know if there are any assets in
the estate until the estate is administered—i.e., the "cart before the horse" argument. The
problem with Beverly's argument is that creditors had 6 months to file a claim against the
estate or file a petition for administration of the estate based on that claim. Additionally,
any will had to be presented within a 6-month time frame as well. There were no claims
filed against Beverly's estate or creditor petitions for administration pursuant to a
creditor's claim filed within the 6-month time period. There were no wills presented for
probate Beverly's petition for letters of administration is simply untimely.


       I also pause to comment that this is not a case where the death of the decedent was
unknown to the person seeking letters of administration and/or making a claim against


                                                   15
the estate. Beverly clearly knew of her mother's death on January 26, 2014. Yet she
waited 7 months to file a petition for letters of administration to become administrator of
Brenner's estate. Her request was untimely based on K.S.A. 59-2239, Nelson, and
Houdashelt. Additionally, the affidavit of Texas attorney John W. Petry indicates that
Beverly called him in early July 2014 to discuss the transfer of deed transaction, again
within the 6-month time frame for filing a claim against the estate. In his affidavit, Danny
also indicated he explained the deed transaction to Beverly in June 2014.


       An action to marshal assets is an impotent tool for decedents' estates. Kansas cases
make clear that an action to marshal assets is properly brought by the representative of
the estate and is not a claim against the estate. See Estate of Draper, 288 Kan. 510; In re
Estate of Wright, 170 Kan. 400, 227 P.2d 131 (1951) (return of property, court clarified it
was not a situation where a beneficiary made a claim against the estate by claiming fraud
or void transfer); Wright v. Rogers, 167 Kan. 297, 205 P.2d 1010 (1949) (refusal to return
property to the decedent's estate).


       I note some specific language in Estate of Wright that appears to favor Beverly.
After discussing possible assets, the court said:


       "Whether these facts may ultimately be proved is not our present question. What we
       determine from the pleadings is that there are assets which have not been administered.
       There is no provision of the probate code fixing a limitation on the time an heir may
       apply for administration of any estate in which he has an interest. The legislature has seen
       fit to make a provision fixing the time in which creditors must apply for administration
       (G.S. 1947 Supp. 59-2239) fixing the time for probate of a written will (59-617 and 618)
       and for the probate of an oral will (59-619) and had it intended any limitation on an heir
       seeking administration of an estate in which he had an interest it could have done so. It
       seems significant that it did not do so." (Emphasis added.) 170 Kan. at 406.




                                                   16
       However, the present case is not one of marshalling assets. The only assets that
could be marshaled are the Texas real estate and the payable-on-death accounts. Beverly
alleges no additional assets even exist. Beverly would have to claim fraud or void
transfer for those to come back into Brenner's estate. Consequently, without those assets,
the estate does not have substantial assets to administer and, as shown below, the district
court was correct to deny the petition on that basis as well.


       On the question of the assets in Brenner's estate, there is substantial evidence to
support the district court's finding that her estate lacked substantial assets to administer.
In her petition, Beverly claimed that Brenner's estate included real estate with an
estimated value of $100,000 and personal property in the estimated amount of $140,000.
However, Danny presented evidence through a special warranty deed and payable on
death accounts that the specific property had been given to him by Brenner nearly 3 years
before her death. He claimed Brenner's undistributed property amounted to $2,000 in
refund checks, but there were still outstanding funeral invoices in excess of $11,500.


       At the hearing in this case, Danny's attorney argued there had been a division of
personal property at the storage units in June or July 2014—within 6 months of Brenner's
death. Even under a summary judgment standard of review, if Beverly had knowledge of
the transfers and she believed they were void or fraudulent, she had to file a claim within
the 6-month time period under K.S.A. 59-2239. If an estate were opened, Beverly would
still have to make a claim of fraud or void the transfers in order to get the money back
into the estate and those would be untimely as determined above.


       The Kansas Legislature has provided multiple avenues to deal with cases lacking
substantial assets. For instance, the nature of the refusal to grant letters procedure
indicates it is a method of administering the estate. See K.S.A. 2014 Supp. 59-2287
(when real estate and personal estate do not exceed $50,000). "The basic purpose of 59-
2287 is to provide an inexpensive, expeditious method of administering estates that are


                                              17
shown to be within its scope." In re Estate of Teichgraeber, 217 Kan. 373, 387, 537 P.2d
174 (1975). There is also a procedure outlined in K.S.A. 2014 Supp. 59-1507b for estates
not exceeding $40,000, and it allows transfer to decedent's successors upon affidavit
showing entitlement to personal property. Last, K.S.A. 59-2250 provides that when a
person has been dead for 6 months, and there is no will, no petition for probate, and no
petition for administration, anyone interested in the estate or claiming an interest may
petition for distribution in accordance with intestate succession. Beverly did not file any
of the above listed logical options for distributing Brenner's remaining assets if there are
any.


       As the parties repeatedly alluded to in the district court, the issuance of letters of
administration is rarely a challenged issue. However, the district court did not err in
finding Brenner's estate lacked substantial assets to administer. I would find Beverly's
petition was untimely and involved yet to be determined claims against Brenner's estate
and affirm the district court.




                                              18
