14-6102. Nonprobate transferees; liability for creditor claims and statutory allowances

A. Except as otherwise provided by law, a transferee of a nonprobate transfer is subject to liability to the decedent's probate estate for allowed claims against the decedent's probate estate and statutory allowances to the decedent's spouse and children to the extent the decedent's probate estate is insufficient to satisfy those claims and allowances. The liability of a nonprobate transferee may not exceed the value of nonprobate transfers received or controlled by that transferee.

B. Nonprobate transferees are liable for the insufficiency described in subsection A of this section in the following order:

1. As provided in the decedent's will or any other governing instrument.

2. To the extent of the value of the nonprobate transfer received or controlled by the trustee of a trust serving as the principal nonprobate instrument in the decedent's estate plan as shown by its designation as devisee of the decedent's residuary estate or by other facts or circumstances.

3. Other nonprobate transferees, in proportion to the values received.

C. Unless otherwise provided by the trust instrument, interests of beneficiaries in all trusts that incur liabilities under this section abate as necessary to satisfy the liability as if all of the trust interments were a single will and the interest were devises under it.

D. A provision made in one instrument may direct the apportionment of the liability among the nonprobate transferees taking under that or any other governing instrument. If a provision in one instrument conflicts with a provision in another instrument, the later instrument prevails.

E. On due notice to a nonprobate transferee, the liability imposed by this section is enforceable in proceedings in this state, wherever the transferee is located.

F. A proceeding under this section may not be commenced unless the personal representative of the decedent's estate has received from the surviving spouse or a child to the extent that statutory allowances are affected, or from a creditor, a written demand for the proceeding. If the personal representative declines or fails to commence a proceeding after demand, a person making the demand may commence the proceeding in the name of the decedent's estate, at the expense of the person making the demand and not of the estate. A personal representative who declines in good faith to commence a requested proceeding incurs no personal liability for declining.

G. A proceeding under this section must be commenced within two years after the decedent's death, but a proceeding on behalf of a creditor whose claim was allowed after proceedings challenging disallowance of the claim may be commenced within sixty days after final allowance of the claims.

H. Unless a written notice asserting that a decedent's probate estate is insufficient to pay allowed claims and statutory allowances have been received from the decedent's personal representative, the following rules apply:

1. Payment or delivery of assets by any financial institution, registrar or other obligor to a nonprobate transferee in accordance with the terms of the governing instrument controlling the transfer releases the obligor from all claims for amounts paid or assets delivered.

2. A trustee receiving or controlling a nonprobate transfer is released from liability under this section on any assets distributed to the trust's beneficiaries. Each beneficiary to the extent of the distribution received becomes liable for the amount of the trustee's liability attributable to that asset imposed by subsections B and C of this section.

I. For the purposes of this section a nonprobate transfer is a valid transfer effective at death, other than a transfer of a survivorship interest in a joint tenancy of real estate, by a transferor whose last domicile was in this state, and to the extent that the transferor immediately before death had power, acting alone, to prevent the transfer by revocation or withdrawal and to instead use the property for the benefit of the transferor or apply it to discharge claims against the transfer's probate estate. With respect to multiple party accounts, the portion of the account that is a nonprobate transfer is that portion of that account to which the decedent was beneficially entitled immediately before death pursuant to section 14-6211.