Printable Format59-1703. Duties of fiduciary; certain transactions voidable; exceptions. No fiduciary shall make a profit by the increase, nor suffer loss by the decrease or destruction without such fiduciary's fault, of any part of the estate, and such fiduciary shall account for the excess when he or she sells for more than the appraisement and shall not be responsible for the loss when he or she sells for less, if such sale appears to be beneficial to the estate.
A fiduciary shall not be responsible for any loss happening by the insolvency of any purchaser, or his or her sureties, for any sale duly made according to law, if such fiduciary proceeded with due caution in taking surety, and has used due diligence to collect thereon.
A fiduciary shall not be accountable for debts due the decedent or conservatee which remain uncollected without fault on such fiduciary's part, but where a fiduciary neglects or unreasonably delays to raise money by collecting debts or selling property, or neglects to pay over the money in his or her hands and by reason thereof the value of the estate is lessened, or unnecessary costs, interest, or penalties accrue, or the persons interested suffer loss, the same shall be deemed waste and the fiduciary shall be charged in his or her account with the damages sustained. A fiduciary shall not purchase any claim against the estate nor shall a fiduciary purchase directly or indirectly or be interested in the purchase of any property sold by such fiduciary, except as hereinafter provided.
Any sale, lease or mortgage to the personal representative, his or her spouse, child or grandchild, agent or attorney in fact, or to any corporation in which he or she has a substantial beneficial interest, or any transaction which is affected by a substantial conflict of interest on the part of the personal representative, is voidable unless: (1) The will or a contract entered into by the decedent expressly authorized the transaction; or (2) the transaction is approved by the court after hearing upon notice to interested persons.
History: L. 1939, ch. 180, § 133; L. 1965, ch. 346, § 16; L. 1975, ch. 299, § 12; January 1, 1976.
Source or prior law:
22-606, 22-909 through 22-911, 22-1001, 22-1003, 22-1004.
Law Review and Bar Journal References:
Accounting for decedents' trusts and estates, W. Keith Weltmer, 34 J.B.A.K. 13, 14 (1965).
"A Practical Review of the 1975 Kansas Probate Code Revisions," Philip S. Frick, 44 J.B.A.K. 137, 140 (1975).
Survey of decedents' estates, Frank Diehl, 15 W.L.J. 358 (1976).
CASE ANNOTATIONS
1. Validity of realty sale by executors to themselves, a former relative and a neighbor determined. In re Estate of Chestnut, 4 Kan. App. 2d 694, 697, 610 P.2d 1132.
2. Executor's duty is to estate, not heirs; suit for breach of duty must be in capacity as executor. Quinlan v. Leech, 5 Kan. App. 2d 706, 708, 623 P.2d 1365.
3. Implicit in statute is concept that parent/representative benefits when free housing provided for offspring. In re Estate of Engels, 10 Kan. App. 2d 103, 109, 692 P.2d 400 (1984).
4. Circumstances rendering order approving claims voidable due to substantial conflict of interest, "other interested parties" examined. In re Conservatorship of L.M.S., 12 Kan. App. 2d 725, 755 P.2d 22 (1988).
5. Cited; penalty provisions of K.S.A. 59-1704 as mandatory regardless of conservator's putative good faith examined. In re Conservatorship of Marcotte, 243 Kan. 190, 194, 195, 756 P.2d 1091 (1988).
6. Term "interested persons" construed; specific devisee without interest in involved property not "interested person." In re Conservatorship of Holman, 18 Kan. App. 2d 173, 177, 849 P.2d 140 (1993).
7. Cited; whether penalty of doubling judgment applies only to court-appointed fiduciaries examined. Bolton v. Souter, 19 Kan. App. 2d 384, 389, 872 P.2d 758 (1994).