ESTATE EXPENSES & INTESTACY: SANDERS V. SMITH (COA 8/17/2007)

SANDERS V. SMITH
WILLS, ESTATES, PROBATE:  EXPENSES AND INTESTACY
2006-CA-000444
PUBLISHED: AFFIRMING
PANEL:  PAISLEY PRESIDING; THOMPSON, VANMETER CONCUR
COUNTY: PIKE
DATE RENDERED: 8/17/2007

On appeal, Ellis and Sue Sanders argue that the judgment is palpably erroneous because it ignores their inherited interest under KRS 391.010, which provides that real estate belonging to an intestate decedent descends to his or her father and mother (assuming that the decedent had no children and after payment of the dower share).

Under KRS 391.030(1), the personal property of an intestate decedent is distributed only after the “payment of funeral expenses, charges of administration, and debts[.]” Real property belonging to an intestate decedent descends directly to the heirs pursuant to KRS 391.010, with one important qualification: if it shall appear that the personal estate is insufficient for the payment of all debts, the court may order the real property descended or devised to the heirs or devisees who may be parties to the action, or so much thereof as shall be necessary, to be sold for the payment of the residue of such debts. KRS 395.515.

In other words, the debts of the estate must be satisfied before the intestate shares are distributed. The Pike Circuit Court did not err in ordering the debts of the estate to be paid prior to distributing the remainder of the estate to Bobby and the appellants.

As a cautionary tale, this opinion started with the following admonition and warning brief writers:

We note as a preliminary matter that the appellants’ brief fails to satisfy Kentucky Rules of Civil Procedure (CR) 76.12(4)(iv), which requires a statement of the case consisting of a chronological summary of facts and procedural events necessary to an understanding of the issues presented by the appeal, with ample reference to the record, and CR 76.12(v), which requires that the argument contain ample supportive reference to the record.

Given the serious deficiencies of appellants’ brief, we would be justified in ordering the brief stricken. See Robbins v. Robbins, 849 S.W.2d 571, 572 (Ky.App. 1993), citing CR 76.12(8)(a). Rather than imposing such a severe sanction, however, we elect instead to dispose of this appeal based solely upon the contents of the parties’ briefs.

Digested by Michael Stevens


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