404.570. Rights of creditors, surviving spouse and unmarried minor children — action for accounting by distributee of nonprobate transfer.

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404.570. Rights of creditors, surviving spouse and unmarried minor children — action for accounting by distributee of nonprobate transfer. — 1. If a deceased beneficiary's probate estate is not sufficient to pay claims, taxes and expenses of administration, including statutory allowances to the surviving spouse and unmarried minor children, the persons that receive a nonprobate transfer of the beneficiary's custodial property under sections 404.560 and 404.565 shall be liable to account to the deceased beneficiary's personal representative for a pro rata share of the value received from the personal custodianship that the decedent owned beneficially immediately before death to the extent necessary to discharge the claims and charges remaining unpaid after application of the funds and property in the decedent's estate.

This subsection does not apply to a death benefit paid pursuant to a life or accidental death insurance policy held by the custodian; and it does not apply to survivorship rights in custodial property held as tenants by the entireties.

2. Only decedent's personal representative may enforce the obligation of the beneficiary's custodial distributees under this section by bringing an action for accounting, but no proceeding to assert this liability shall be commenced unless the personal representative has received a written demand therefor by a creditor, surviving spouse or one acting for an unmarried minor child of the deceased beneficiary, and no proceeding shall be brought for accounting under this section more than two years following the beneficiary's death. Sums recovered by the personal representative shall be administered as part of the decedent's estate.

3. After an action for accounting has been commenced under this section, any party to the proceeding may join and bring into the action for accounting distributees of custodial property from other personal custodianships of the decedent, parties and beneficiaries of multiple-party accounts in which the decedent was an account party, beneficiaries of other types of nonprobate transfers who by law are liable to contribute to the satisfaction of creditor claims in a similar proceeding for accounting, and persons who succeed to property not subject to probate administration that was subject to satisfaction of the decedent's debts during the decedent's lifetime, including the decedent's interest in property distributed at the decedent's death by a trustee of a revocable trust created by the decedent and property held as a joint tenant with rights of survivorship, but only to the extent of decedent's contribution to the value of the joint property.

4. This section shall not affect the right of the personal custodian to execute a direction of the beneficiary to make a payment or to make a nonprobate transfer on death of the beneficiary, or to make that person liable to the beneficiary's estate, unless before the payment or transfer, the personal custodian has been served with process in a proceeding brought by the deceased beneficiary's personal representative and the personal custodian has had a reasonable time to act on it.

5. This section does not create a lien on any property that is the subject of a nonprobate transfer, except as a lien may be perfected by way of attachment, garnishment or judgment in an accounting proceeding authorized by this section.

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(L. 1986 S.B. 651 § 6 subsec. 5 subdiv. (7), A.L. 1989 H.B. 145, A.L. 1993 S.B. 277)