Thursday, May 14, 2015


 Subject to appeal and subject to vacation as provided in this section and in Section 3-413, a formal testacy order under Sections 3-409 to 3-411, including an order that the decedent left no valid will and determining heirs, is final as to all persons with respect to all issues concerning the decedent’s estate that the court considered or might have considered incident to its rendition relevant to the question of whether the decedent left a valid will, and to the determination of heirs, except that:
(1) The court shall entertain a petition for modification or vacation of its order and probate of another will of the decedent if it is shown that the proponents of the later-offered will:
(A) were unaware of its existence at the time of the earlier proceeding; or
(B) were unaware of the earlier proceeding and were given no notice thereof, except by publication.
(2) If intestacy of all or part of the estate has been ordered, the determination of heirs of the decedent may be reconsidered if it is shown that one or more persons were omitted from the determination and it is also shown that the persons were unaware of their relationship to the
decedent, were unaware of his death or were given no notice of any proceeding concerning his estate, except by publication.
(3) A petition for vacation under paragraph (1) or (2) must be filed prior to the earlier of the following time limits:
(A) if a personal representative has been appointed for the estate, the time of entry of any order approving final distribution of the estate, or, if the estate is closed by statement, six months after the filing of the closing statement;
(B) whether or not a personal representative has been appointed for the estate of the decedent, the time prescribed by Section 3-108 when it is no longer possible to initiate an original proceeding to probate a will of the decedent; or
(C) twelve months after the entry of the order sought to be vacated.
(4) The order originally rendered in the testacy proceeding may be modified or vacated, if
appropriate under the circumstances, by the order of probate of the later-offered will or the order redetermining heirs.
(5) The finding of the fact of death is conclusive as to the alleged decedent only if notice of the hearing on the petition in the formal testacy proceeding was sent by registered or certified mail addressed to the alleged decedent at his last known address and the court finds that a search under Section 3-403(b) was made.
If the alleged decedent is not dead, even if notice was sent and search was made, he may recover estate assets in the hands of the personal representative. In addition to any remedies available to the alleged decedent by reason of any fraud or intentional wrongdoing, the alleged decedent may recover any estate or its proceeds from distributees that is in their hands, or the value of distributions received by them, to the extent that any recovery from distributees is
equitable in view of all of the circumstances.
The provisions barring proof of late-discovered wills is derived in part from Section 81 of Model Probate Code (1946). The same section is the source of the provisions of paragraph (5) above. The provisions permitting vacation of an order determining heirs on certain conditions reflect the effort to offer parallel possibilities for adjudications in testate and intestate estates. See Section 3-401. An objective is to make it possible to handle an intestate estate exactly as a testate estate may be handled. If this is achieved, some of the pressure on persons to make wills may be relieved.
If an alleged decedent turns out to have been alive, heirs and distributees are liable to restore the “estate or its proceeds”. If neither can be identified through the normal process of tracing assets, their liability depends upon the circumstances. The liability of distributees to claimants whose claims have not been barred, or to persons shown to be entitled to distribution when a formal proceeding changes a previous assumption informally established which guided an earlier distribution, is different. See Sections 3-909 and 3-1004.

1993 technical amendments clarified the conditions intended in paragraphs (1) and (2).

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