§ 2-1-101. Short title.

This act may be cited as the “Wyoming Probate Code”.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

Editor's notes. —

The original Wyoming Probate Code (ch. 70, Laws 1890-91) was derived from the laws of California. The law which Wyoming adopted was repealed by California in 1931 (Stats. 1931, p. 687), with the exception of § 1723, which was repealed in 1939 (Stats. 1939, p. 1874). However, since much of the former code was reenacted verbatim or in a modified form by California, references, where pertinent, have been retained throughout title 2 to the current provisions of the California Probate Code (Deering 1974). See also catchline “Weight of California decisions” in notes to § 2-1-102 .

Meaning of “this act.” —

The term “this act” refers to ch. 142, Laws 1979, as amended by ch. 54, Laws 1980, the provisions of which appear as §§ 2-1-101 to 2-15-106 . See “Revision of title” note appearing at the beginning of title 2.

History and disposition of original Probate Code. —

The original Probate Code in Wyoming was enacted by ch. 70, Laws 1890-91, which was subdivided into 28 chapters. These chapters have since been redesignated as articles and are reflected as such in the historical citations to the statutes and in the notes. Much of the original code is still in effect, although there has also been a considerable amount of subsequent legislation enacted affecting it, particularly ch. 142, Laws 1979, as amended by ch. 54, Laws 1980, which enacts the present Wyoming Probate Code. Moreover, some statutes relating to probate matters which existed prior to the 1890-91 enactment of the original Probate Code are still in effect as well and have been included in the present Wyoming Probate Code.

The following table shows the disposition of those provisions of the original Probate Code, ch. 70, Laws 1890-91, divided into articles, as originally enacted, which are still in effect and continue to be a part of the present Wyoming Probate Code or other titles in the 1977 Wyoming Statutes:

Article 1, §§ 1 to 5 (jurisdiction), appears as §§ 2-2-101 , 2-2-104 to 2-2-108 and 2-2-201 .

Article 2, §§ 1 to 16 (proof of wills — granting of letters), appears as §§ 2-2-102 , 2-2-103 and 2-6-301 .

Article 3, §§ 1 to 12 (contest of wills), appears as § 2-6-306 .

Article 4, §§ 1 to 7 (proof of lost and nuncupative wills), appears as § 2-6-207 .

Article 5, §§ 1 to 8 (executors), appears as § 2-6-211 .

Article 6, §§ 1 to 3 (form of letters testamentary), appears as §§ 2-4-214 and 2-6-210 .

Article 7, §§ 1 to 15 (letters of administration, to whom and the order of granting), appears as §§ 2-3-132 to 2-3-135 and 2-4-201 to 2-4-210 .

Article 8, §§ 1 to 19 (oaths and bonds of executors and administrators), appears as §§ 2-3-101 to 2-3-103 and 2-3-105 to 2-3-120 .

Article 9, §§ 1 to 7 (special administrators — their powers and duties), appears as §§ 2-7-301 to 2-7-307 .

Article 10, §§ 1 to 13 (wills found after letters granted and miscellaneous provisions), appears as §§ 2-2-110 and 2-3-121 to 2-3-131 .

Article 11, §§ 1 to 9 (inventory and collection of the effects), appears as §§ 2-7-401 and 2-7-403 to 2-7-409 .

Article 12, §§ 1 to 4 (embezzlement and surrender of property of the estate), appears as §§ 2-7-411 to 2-7-413 .

Article 13, §§ 1 to 13 (providing for the support of the family and care of the homestead), appears as §§ 2-7-501 to 2-7-503 , 2-7-506 , 2-7-507 and 2-7-509 .

Article 14, §§ 1 to 21 (of claims against the estate), appears as §§ 2-7-703 , 2-7-704 , 2-7-710 to 2-7-714 , 2-7-717 and 2-7-718 .

Article 15, §§ 1 to 58 (sales in general), appears as §§ 2-7-601 to 2-7-608 .

Article 16, §§ 1 to 11 (of the powers and duties of executors and administrators and of the management of the estate), appears as §§ 2-7-103 to 2-7-108 .

Article 17, §§ 1 to 27 (liabilities and compensation of executors and administrators), none of the sections still appear.

Article 18, §§ 1 to 27 (final settlement and partial distribution prior thereto), appears as §§ 2-8-101 , 2-15-101 , 2-15-102 and 2-15-104 to 20-15-106.

Article 19, §§ 1 to 5 (of wills probated in foreign countries), none of the sections still appear.

Article 20, §§ 1 to 16 (of orders, decrees, process, minutes, records, trials and appeals), appears as §§ 2-2-301 to 2-2-312 .

Article 21, §§ 1 to 13 (of guardian and ward), appears as §§ 3-2-101 to 3-2-112 and 14-2-201 .

Article 22, §§ 1 to 14 (guardians of insane and incompetent persons), appeared as § 25-1-101 prior to being repealed by Laws 1992, ch. 25, § 4.

Article 23, §§ 1 to 9 (the powers and duties of guardians), appears as §§ 3-2-201 and 3-2-202 .

Article 24, §§ 1 to 16 (the sale of property and disposition of proceeds), appeared as §§ 3-4-101 , 3-4-102, 3-4-104 to 3-4-115, 3-4-117 and 3-4-118 before the revision of title 3 by Laws 1985, ch. 226, § 1.

Article 25, §§ 1 to 7 (nonresident guardians and wards), appeared as §§ 3-5-101 to 3-5-107 before the revision of title 3 by Laws 1985, ch. 226, § 1.

Article 26, §§ 1 to 9 (general and miscellaneous provisions), appeared as §§ 3-1-101 , 3-2-113 to 3-2-119 and 3-4-103 before the revision of title 3 by Laws 1985, ch. 226, § 1.

Article 27, §§ 1 to 4 (fees), appears as §§ 2-2-403 and 2-2-404 .

Article 28, §§ 1 and 2 (miscellaneous matters), appears as §§ 2-2-109 and 2-2-203 .

Section 3, art. 28, ch. 70, Laws 1890-91, provided that all pending probate proceedings should be completed under the existing law.

Section 4, art. 28, ch. 70, Laws 1890-91, provided that whenever the probate judge or court was mentioned, the same should mean and refer to the district court or judge.

Section 5, art. 28, ch. 70, Laws 1890-91, provided that until court commissioners were created, the duties prescribed for them were to be performed by the clerks of the district courts.

Section 6, art. 28, ch. 70, Laws 1890-91, repealed R.S. 1887, §§ 1187, 1969 to 2220, 2240 to 2273 and 2287 to 2331, and ch. 10, Laws 1890.

Section 7, art. 28, ch. 70, Laws 1890-91, made the act effective on January 10, 1891.

For the disposition, including earlier repeals, of all the provisions of ch. 70, Laws 1890-91, see the Table of Disposition of Acts, and also the Table of Revised and Renumbered Sections for new W.S. 1977 numbers and recent deletions, which appear in Volume 11.

Requirement of affidavit. —

Nothing in the Wyoming Probate Code, Wyo. Stat. Ann. § 2-1-101 et seq., or Wyo. Stat. Ann. § 2-7-703 , 704 in particular, required a claimant to state the particular legal theories upon which the claim was based or to specify the evidence upon which the claim rested; district court erred in rejecting the company's claim due solely to its failure to file an attached affidavit, which was not required because the claim itself provided enough information to sufficiently challenge the attention of the personal representative and enable him to act advisedly in the exercise of his discretion. Estate of Frost v. Dodson, 2007 WY 63, 155 P.3d 1031, 2007 Wyo. LEXIS 66 (Apr. 13, 2007).

Quoted in

In re Estate of Croft, 713 P.2d 782, 1986 Wyo. LEXIS 478 (Wyo. 1986).

Law reviews. —

For article, “Uniform Probate Code Procedures: Time for Wyoming to Reconsider,” see 2 Wyo. L. Rev. 293 (2002).

§ 2-1-102. Rules of construction and applicability.

1. This code shall be liberally construed and applied, to promote the following purposes and policies to:
   1. Simplify and clarify the law concerning the affairs of decedents, missing persons, protected persons, minors and incapacitated persons;
   2. Discover and make effective the intent of a decedent in distribution of his property;
   3. Promote a speedy and efficient system for liquidating the estate of the decedent and making distribution to his successors;
   4. Facilitate use and enforcement of certain trusts.
2. Unless displaced by the particular provisions of this code, the principles of law and equity supplement the code provisions.
3. This code is a general act intended as a unified coverage of its subject matter and no part of it shall be deemed impliedly repealed by subsequent legislation if it can reasonably be avoided.
4. The procedure herein prescribed shall govern all proceedings in probate brought after the effective date of this code. It shall also govern further procedure in proceedings in probate then pending unless the court determines its application in particular proceedings or parts thereof is not feasible or will work an injustice, in which event the former procedure shall apply.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

Meaning of “this code.” —

The term “this code” seems to mean the Wyoming Probate Code. See § 2-1-101 and notes thereto.

Editor's notes. —

The first two cases under the heading “Weight of California decisions” below were decided prior to the enactment of § 2-1-102 relating to the rules of construction and applicability of the new Wyoming Probate Code, but are seemingly still applicable. See editor's note and also catchline “History and disposition of original Probate Code” in § 2-1-101 .

Applicability of equitable adoption. —

Foster children provision must be interpreted in light of the stated overall goals of simplicity, clarity, speed, and efficiency, and the doctrine of equitable adoption is anything but simple, clear, or speedy in application; Wyoming does not recognize the doctrine of equitable adoption. Therefore, a claimant was unable to recover from a decedent, who was not her biological father; the decedent could have adopted the claimant or provided for her in his will, but did neither. In re Estate of Ronald, 2014 WY 129, 336 P.3d 129, 2014 Wyo. LEXIS 146 (Wyo. 2014).

New Wyoming Probate Code applies to wills previously written if the date of death follows the effective date of the Probate Code, unless then-existent vested rights are adversely affected. Therefore, the contract balance remaining for ranch land sold under a 1980 installment sales contract was to be distributed in accord with a 1969 will provision under which the testatrix gave, devised and bequeathed “all of my interest and title” in the land. Douglas v. Newell, 719 P.2d 971, 1986 Wyo. LEXIS 555 (Wyo. 1986).

Weight of California decisions. —

The sections comprising the Probate Code were taken from California, so that the supreme court is inclined to follow decisions in that state on that subject, if it is not inappropriate to do so. Merrill v. District Court of Fifth Judicial Dist., 73 Wyo. 58, 272 P.2d 597, 1954 Wyo. LEXIS 12 (Wyo. 1954).

Wyoming's probate law is derived from that of California, and the decisions of the courts of that state are given particular importance, at least when construing the probate statutes. In re Estate of Kimball, 583 P.2d 1274, 1978 Wyo. LEXIS 232 (Wyo. 1978).

Because of adjustments to the probate codes of both Wyoming and California, Wyoming courts will no longer treat California precedent as having additional persuasive authority, but will afford it the same persuasive weight as that of any other sister jurisdiction. In re Estate of Zelikovitz, 923 P.2d 740, 1996 Wyo. LEXIS 126 (Wyo. 1996).

Will unambiguous. —

In a challenge to a will, the court held that the language of the will was apparent and unambiguously reflected the testatrix's intent that the stock held solely in her name, located in the safety deposit box, be distributed to the sister, and did not reflect an intention that the stocks were to pass under the residuary clause. Baker v. Enis (In re Estate of Stanton), 2005 WY 74, 114 P.3d 1246, 2005 Wyo. LEXIS 89 (Wyo. 2005).

Attorney who undertakes to probate decedent's will is the attorney for both the estate and the personal representative, where the personal representative engages the attorney to assist her in performing her duties. Grievance Comm., Wyo. State Bar v. Riner, 765 P.2d 925, 1988 Wyo. LEXIS 167 (Wyo. 1988).

Applicability of equitable adoption. —

Based on the clear and unambiguous language of the last will and testament, there was no indication that it was the decedent's intention to have decedent's stepchild's children inherit the share the stepchild would have inherited had the stepchild survived the decedent, where the decedent never officially adopted the stepchild, and the Wyoming Supreme Court declined to apply the doctrine of equitable adoption to affect the distribution of a testate estate and to avoid the operation of the anti-lapse statute, Wyo. Stat. Ann. § 2-6-106 .Sanderson v. Bathrick (In re Estate of Seader), 2003 WY 119, 76 P.3d 1236, 2003 Wyo. LEXIS 144 (Wyo. 2003).

Applied in

In re Estate of Croft, 713 P.2d 782, 1986 Wyo. LEXIS 478 (Wyo. 1986).

Quoted in

In re Estate of Scott, 642 P.2d 1287, 1982 Wyo. LEXIS 319 (Wyo. 1982); Lon V. Smith Found. v. Devon Energy Corp., 2017 WY 121, 403 P.3d 997, 2017 Wyo. LEXIS 127 (Wyo. 2017).

Cited in

Strngari v. Taylor (In re Estate of Novakovich), 2004 WY 158, 101 P.3d 931, 2004 Wyo. LEXIS 203 (2004).

Law reviews. —

For article, “The Ungrateful Living: An Estate Planner's Nightmare — The Trial Attorney's Dream,” see XXIV Land & Water L. Rev. 401 (1989).

§ 2-1-103. Objections to appointments.

For appointments made pursuant to the Wyoming Probate Code, unless a shorter period of time is specified in the code or by the court, or where an appointment will be made with no hearing or no notice, all persons having an objection to the appointment of any person as a personal representative, administrator, executor, trustee, conservator, fiduciary or receiver shall file the objection in the court considering the appointment no less than five (5) days prior to any hearing scheduled to consider the appointment. A court may waive this requirement upon a showing of good cause.

History. Laws 2013, ch. 169, § 1.

Effective dates. —

Laws 2013, ch. 169, § 2, makes the act effective July 1, 2013.

§ 2-1-201. Payment of indebtedness and delivery of tangible personal property or instruments evidencing debt.

1. Not earlier than thirty (30) days after the death of a decedent, any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock or chose in action belonging to the decedent shall make payment of the indebtedness or deliver the tangible personal property or the instrument evidencing the debt, obligation, stock or chose in action to the person or persons claiming to be the distributee or distributees of the property or the attorney for the distributee or distributees, upon being presented an affidavit, filed as provided by subsection (c) of this section, made by or on behalf of the distributee or distributees stating:
   1. The value of the entire estate located in Wyoming subject to administration, either testate or intestate, less liens and encumbrances, does not exceed two hundred thousand dollars ($200,000.00);
   2. Thirty (30) days have elapsed since the death of the decedent;
   3. No application for appointment of a personal representative is pending or has been granted in any jurisdiction in this state;
   4. The person or persons claiming to be a distributee or distributees are entitled to payment or delivery of the property of the decedent; the facts concerning the distributee’s or distributees’ relationship to the decedent and concerning the legal basis upon which the distributee or distributees claim entitlement to such property, including facts regarding any intervening estates or other parties who may have a claim of entitlement from the decedent and from whom the applicant distributee or distributees claim and that there are no other distributees of the decedent having a right to succeed to the property under probate proceedings in any jurisdiction; and
   5. If an application for appointment of a personal representative has been made in a jurisdiction outside of Wyoming:
      1. The name and address of the proposed or appointed personal representative, the date of the application and the date of any appointment; and
      2. The title of the proceedings and name of the court and jurisdiction in which the application was made.
2. The transfer agent for any security shall change the registered ownership on the books of a corporation from the decedent to the distributee or distributees upon presentation of an affidavit as provided in subsections (a) and (c) of this section.
3. When the affidavit is filed with the county clerk and a certified copy is presented to any person with custody of the decedent’s property or a holder of the decedent’s property, the affidavit shall be honored and have the effect as provided in this section and W.S. 2-1-202 .
4. The county clerk of the county in which any vehicle is registered shall transfer title of the vehicle from the decedent to the distributee or distributees upon presentation of an affidavit as provided in subsection (a) of this section.
5. Upon presentation of an affidavit as provided in this section, a person with custody of the decedent’s property or a holder of the decedent’s property shall pay or deliver any of the decedent’s property held or on deposit in the sole name of the decedent, together with the interest and dividends thereon, to the distributee or distributees. A receipt for the payment by the distributee or distributees or proof of delivery by the custodian or holder of the decedent’s property shall constitute a valid and sufficient release and discharge for the payment or delivery made.

History. Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1; 1983, ch. 15, § 1; 1991, ch. 98, § 1; 2002 Sp. Sess., ch. 60, § 2; 2011, ch. 58, § 1; 2015, ch. 74, § 2.

The 2011 amendment, effective July 1, 2011, rewrote (a)(i), which formerly read: “The value of the entire estate, wherever located, less liens and encumbrances, does not exceed one hundred fifty thousand dollars ($150,000.00)”; and, in (a)(iii), added “in this state” after “any jurisdiction.”

The 2015 amendment, effective July 1, 2015, in the introductory language of (a), substituted “distributee or distributees of the property or the attorney for the distributee or distributes” for “distributees of the property” and “or distributes stating” for “stating”; in (a)(i), substituted “subject to administration, either testate or intestate” for “or otherwise subject to probate administration, in this state”; rewrote (a)(iv); added (a)(v); rewrote (c); redesignated the former last sentence in (c) as (d); redesignated former (d) as (e); rewrote (e); and made related changes.

Motion for new trial inappropriate. —

After decedent died, the applicants filed an application for decree of distribution under the summary procedures applicable to estates valued at less than $150,000 and the district court entered summary judgment and a decree of distribution; because no trial was held, appellant grandson's motion for new trial was inappropriate. While the grandson's motion for new trial claimed that the estate should not have been settled by summary disposition because it was valued at more than $150,000, the grandson made no showing that the evidence pertaining to the value of the estate could not have been provided during the summary judgment proceeding. Mathewson v. Estate of Nielsen (In re Estate of Nielsen), 2011 WY 71, 252 P.3d 958, 2011 Wyo. LEXIS 74 (Wyo. 2011).

Law reviews. —

For article, “The Ungrateful Living: An Estate Planner's Nightmare — The Trial Attorney's Dream,” see XXIV Land & Water L. Rev. 401 (1989).

§ 2-1-202. Effect; refusal to pay, deliver.

1. The person having custody of the decedent’s property or a holder of the decedent’s property:
   1. Paying, delivering, transferring or issuing personal property or the evidence thereof pursuant to affidavit is discharged and released to the same extent as if he dealt with a personal representative of the decedent; and
   2. Is not required to see to the application of the personal property or evidence thereof or to inquire into the truth of any statement in the affidavit.
2. If any person having custody of the decedent’s property or a holder of decedent’s property to whom an affidavit is delivered refuses to pay, deliver, transfer or issue any personal property or evidence thereof, the property may be recovered or its payment, delivery, transfer or issuance compelled upon proof of right in an action by or on behalf of the persons entitled thereto. If an action is brought under this subsection, the court shall award reasonable attorney’s fees and costs of the action to the plaintiff if the court finds that the decedent’s property was not paid, delivered, transferred or issued within forty-five (45) days after presentation of the affidavit under W.S. 2-1-201 unless the court finds just cause for the refusal to pay, deliver or transfer the property.
3. Any person to whom payment, delivery, transfer or issuance is made is answerable and accountable to a personal representative of the estate or to any other person having a like or superior right.
4. For purposes of this article, “holder” means any person who is in possession of property of the decedent and includes but is not limited to a security broker, security dealer, bank, savings and loan institution, credit union or any other like depository.

History. Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1; 2015, ch. 74, § 2.

The 2015 amendment, effective July 1, 2015, added the section designations; inserted “having custody of the decedent's property or a holder of the decedent's property” in the introductory language of (a), and (b); in (b), added the last sentence; in (c), inserted “like or”; added (d); and made related and stylistic changes.

§ 2-1-203. Deposits by minors or persons under a disability; joint and trust deposits; pay-on-death accounts.

1. Deposits by minors or other persons under a legal disability may be paid on the order of the depositor and the payments are legally valid.
2. Any portion of a deposit by two (2) or more persons payable to either or any depositor, or to the survivor of the depositors, and interest or dividends thereon, may be paid in accordance with the contract of deposit. The receipt of the payment by the person paid is a valid and sufficient release and discharge to the financial institution for any payment made.
3. Any portion of a deposit by any person in trust for another and interest or dividends thereon, in the absence of other written notice to the financial institution of the existence and terms of a legal and valid trust, may be paid to the persons for whom the deposit was made in the event of death of the depositor.
4. Any payable on death (P.O.D.) account may be paid, on request, to any original party to the account. Payment may be made, on request, to the P.O.D. payee or in equal proportions to multiple P.O.D. payees upon presentation to the financial institution of proof of death showing that the P.O.D. payee or payees survived all persons named as original payees. Payment may be made to the personal representative or heirs of a deceased original payee if proof of death is presented to the financial institution showing that his decedent was the survivor of all other persons named on the account either as an original payee or as P.O.D. payee. The receipt of the payment by the person paid is a valid and sufficient release and discharge to the financial institution for any payment made. A person named as a payee in a P.O.D. account has no enforceable rights therein during the lifetime of the person or persons creating the account. As used in this subsection:
   1. “P.O.D. account” means an account payable on request to one (1) person during his lifetime and on his death to one (1) or more P.O.D. payees, or to one (1) or more persons during their lifetimes and on the death of all of them to one (1) or more P.O.D. payees;
   2. “P.O.D. payee” means a person designated on a P.O.D. account as one to whom the account is payable on request after the death of all original payees.

History. Laws 1925, ch. 157, §§ 43, 45; R.S. 1931, §§ 10-145, 10-147; C.S. 1945, §§ 35-148, 35-150; W.S. 1957, §§ 13-29, 13-34; Laws 1961, ch. 219, § 10-103; 1963, ch. 156, § 1; 1969, ch. 14, § 1; 1977, ch. 67, § 1; W.S. 1977, § 13-3-601 ; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1; 1991, ch. 105, § 1; 1993, ch. 33, § 1; 1996, ch. 66, § 1.

Cross references. —

As to accounts of minors, and joint accounts in savings and loan associations, see § 13-7-302 .

As to deposits and collections generally, see §§ 34.1-4-101 to 34.1-4-504.

Common law relative to presumption favoring joint tenancies has been modified by statute in this state. Choman v. Epperley, 592 P.2d 714, 1979 Wyo. LEXIS 389 (Wyo. 1979).

Recognition of joint tenancies with right of survivorship. —

This section encompasses a legislative policy in favor of the recognition of joint tenancies with right of survivorship in bank accounts in Wyoming. National Bank v. Wartell, 580 P.2d 1142, 1978 Wyo. LEXIS 208 (Wyo. 1978).

Assignee of joint owner of savings account can stop payment of funds from account to other joint owner by means of giving proper notice of the assignment to the bank. First Wyo. Bank v. First Nat'l Bank, 612 P.2d 469, 1980 Wyo. LEXIS 282 (Wyo. 1980).

Cited in

Hartt v. Brimmer, 74 Wyo. 338, 287 P.2d 638, 1955 Wyo. LEXIS 40 (1955).

Law reviews. —

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part III,” 9 Land & Water L. Rev. 567 (1974).

Am. Jur. 2d, ALR and C.J.S. references. —

Conflict of laws as to disposition of and relative rights to bank deposits in the names of more than one person, 25 ALR2d 1240.

Parol evidence rule as applied to deposit of funds in name of depositor and another, 33 ALR2d 569.

Revocation to tentative [“Totten”] trusts of savings bank account by inter vivos declaration or will, 46 ALR3d 487.

Death of beneficiary as terminating or revoking trust of savings bank account over which settlor retains right of withdrawal or revocation, 64 ALR3d 221.

Liability of bank to joint depositor of savings account for amounts withdrawn by other joint depositor without presentation of passbook, 35 ALR4th 1094.

Payable-on-death savings account or certificate of deposit as will, 50 ALR4th 272.

§ 2-1-204. Collection of claims of certain creditors of decedent by affidavit.

1. Not earlier than ninety (90) days after the death of a decedent, the United States, or any agency or instrumentality thereof, or the state of Wyoming, or any agency, instrumentality or political subdivision thereof, to whom the decedent was indebted or to whom the decedent’s estate would be indebted if the estate were being administered upon, may collect all of the assets of the decedent referred to in W.S. 2-1-201 , upon presentation of an affidavit to the parties referred to in W.S. 2-1-201 , stating:
   1. The value of the entire estate, wherever located, less liens and encumbrances, does not exceed two hundred thousand dollars ($200,000.00);
   2. Ninety (90) days have elapsed since the death of the decedent;
   3. No application for appointment of a personal representative is pending or has been granted in any jurisdiction;
   4. To the best knowledge of the affiant, no affidavit pursuant to W.S. 2-1-201, in connection with the decedent, has been presented to any party referred to in W.S. 2-1-201;
   5. The facts concerning the creditor’s claim being made by the party on behalf of whom the affidavit is presented, the total amount of the claim, and any payments received thereon from any source whatsoever; and
   6. That by presentation of the affidavit the party on behalf of whom the affidavit is presented:
      1. Waives any immunities from suit or levy of execution it might otherwise have;
      2. Agrees to indemnify and hold harmless from all claims whatsoever any party delivering assets on the basis of such affidavit, to the extent of the full value of the assets so delivered; and
      3. Is answerable and accountable to a personal representative of the estate, if appointed, or to any other person or party having a superior right.
2. When filed with the county clerk and a certified copy thereof is presented to a party with custody of assets, the affidavit shall be honored and shall have the effects as provided for in W.S. 2-1-201(b), (c) and (d) and 2-1-202 .
3. If the total assets collected by a creditor designated in this section, by virtue of the affidavit or affidavits, exceed the net balance of the creditor’s claim, then the creditor shall:
   1. Pay the overplus to any other creditor who proceeds properly under this section or, if there is no such creditor;
   2. Pay the overplus to the distributees named in an affidavit prepared and presented pursuant to W.S. 2-1-201 , or, if none such be presented;
   3. Obtain an order from the probate court which would have jurisdiction were the estate being administered upon, designating itself the agent pursuant to W.S. 2-15-101 , and thereupon proceed as provided in Chapter 15 of the Wyoming Probate Code.

History. Laws 1981, ch. 151, § 1; 1991, ch. 98, § 1; 2002 Sp. Sess., ch. 60, § 2; 2013, ch. 166, § 1.

The 2013 amendment, substituted “two hundred thousand dollars ($200,000.00)” for “one hundred fifty thousand dollars ($150,000.00)” in (a)(i).

Laws 2013, ch. 166, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by Article 4, Section 8 of the Wyoming Constitution. Approved March 13, 2013.

Wyoming Probate Code. —

“Chapter 15 of the Wyoming Probate Code,” referred to in subsection (c)(iii), refers to chapter 15 of this title.

§ 2-1-205. Summary procedure for distribution of personal or real property; application for decree; notice by publication; presumptive evidence of title; effect of false statements.

1. If any person dies who is the owner of personal or real property, including mineral interests, but whose entire estate including personal property does not exceed two hundred thousand dollars ($200,000.00), less liens and encumbrances, the person or persons claiming to be the distributee or distributees of the decedent may file, not earlier than thirty (30) days after the decedent’s death, an application for a decree of summary distribution of property.
2. The application shall be sworn to and signed by any person claiming to be a distributee and shall state the facts required by W.S. 2-1-201(a)(i) through (v). The application shall also fully describe any real property, including any mineral interests, being claimed.
3. The application shall have attached thereto a sworn report of value which may be based upon a broker’s price opinion as defined by W.S. 33-28-102(b)(lxii), made by a person who has no legal interest in the estate, showing the value on the date of the decedent’s death of all interests owned by the decedent in real property located in Wyoming, including mineral interests.
4. Subject to subsection (j) of this section, a notice of application for a decree of summary distribution of property shall be published once a week for two (2) consecutive weeks in a newspaper of general circulation in the county in which the application was filed. The notice of application shall be served by first class mail to the last known address, with copy of application attached, to the surviving spouse of the decedent, if any, and to all other distributees, so far as known, or to their guardians if any of them are minors, or to their personal representatives if any of them are deceased and to any reasonably ascertainable creditors not later than ten (10) days after the date of first publication.
5. If the decedent received medical assistance pursuant to W.S. 42-4-101 through 42-4-114 , the state department of health shall be provided a copy of the application for a decree within ten (10) days after the date of first publication.
6. An objection to an application shall be filed before the expiration of the later of twenty (20) days after the mailing required by subsection (d) of this section or thirty (30) days after the date of first publication. An untimely objection is forever barred. If no timely objection is filed, the court shall enter a decree establishing the right and title to the property located in Wyoming. A certified copy of the decree shall be recorded in the office of the county clerk of each county in which the real property, including mineral interests, is located. Upon recording of the decree, the decree and the record thereof shall be presumptive evidence of title to the property. If an objection to the application is filed within the time provided in this subsection, the court shall set the matter for a hearing, after which the court shall enter an order either denying or granting the application.
7. In the event that the decree is entered as the result of an application containing a materially false statement, title to the property which passes as a result of the decree shall not be affected but the person or persons signing as distributee or distributees and knowingly swearing to a materially false statement in the application shall be subject to the appropriate penalties for perjury. Any distributee who is damaged by an application containing a material false statement may file an action to amend the decree, and for damages. The action shall be filed in the court in which the application was filed. Any action under this paragraph is barred unless commenced within two (2) years from the entry of the decree.
8. The procedure provided by this section may be used in addition to the affidavit procedure provided by W.S. 2-1-201 .
9. Notice to the agent or attorney of any party entitled to notice under this section is notice to that party.
10. Distributions of property under this article to a person who claims title to the decedent’s property through intervening estates is authorized if the person is a distributee as defined in W.S. 2-1-209 .
11. A distributee who has satisfied the requirements of this section and W.S. 2-1-201 is entitled to a decree of summary distribution and no further action under this title is required.

History. Laws 1983, ch. 104, § 1; W.S. 1977, § 2-1-204 ; Laws 1985, ch. 15, § 1; 1991, ch. 98, § 1; 1999, ch. 125, § 1; 2002 Sp. Sess., ch. 60, § 2; 2011, ch. 58, § 1; 2013, ch. 175, § 1; 2015, ch. 74, § 2; 2016, ch. 78, § 1; 2017, ch. 125, § 1, § 1; 2019, ch. 85, § 2.

The 2011 amendment, effective July 1, 2011, in (a), added “personal or” after “the owner of”, and substituted “two hundred thousand dollars ($200,000.00)” for “one hundred fifty thousand dollars ($150,000.00).”

The 2013 amendment, effective July 1, 2013, in (e) deleted “or in the alternative, if the person or persons claim both real property and personal property.”

The 2015 amendment, effective July 1, 2015, rewrote the section.

The 2016 amendment, effective July 1, 2016, substituted “not later” for “not less” in the last sentence of (d).

The 2017 amendment , effective July 1, 2017, in (d), added “Subject to subsection (j) of this section” at the beginning; in (f), added the first sentence, substituted “If no timely objection is filed” for “if no objection to the application has been filed within thirty (30) days of the first date of publication” in the second sentence, and substituted “the time provided in this subsection” for “within thirty (30) days of the first date of publication the time provided in this subsection” in the fifth sentence; and added (j).

The 2019 amendment, in (f), inserted “forever” preceding “barred” in the second sentence; and added (k) and (m).

Laws 2019, ch. 85, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8 of the Wyo. Const. Approved February 26, 2019.

Editor's notes. —

This section was enacted by the legislature as § 2-1-204 but has been renumbered because a § 2-1-204 , relating to collection of claims by decedent's creditors, already exists.

Laws 2019, ch. 85, § 3, provides: “This act shall apply to any application for a decree of summary distribution of property filed under W.S. 2-1-205 on or after the effective date of this act.”

Standing. —

Granddaughter lacked standing to apply for a decree of summary distribution of the real property of her grandfather’s estate under Wyo. Stat. Ann. § 2-1-205 (2017) where the definition of distributee set forth in Wyo. Stat. Ann. § 2-1-301(a)(xiii) applied solely to persons who were entitled to property of a decedent through that decedent’s will or the statutes of intestate succession as applied to that decedent, the grandfather’s will had passed his assets and real property to his wife, and the granddaughter allegedly possessed an interest in the real property by way of several estates. In re Estate of Frank, 2019 WY 4, 432 P.3d 885, 2019 Wyo. LEXIS 3 (Wyo. 2019).

Summary distribution. —

District court erred in ruling that this section, which was amended in 2015, did not authorize summary distribution of real property located in other Wyoming counties. By removing language directing that an application for summary distribution be filed in the district court of the county where the property is situated, the legislature clearly indicated its intention that the statute authorizes a district court to order summary distribution of real property throughout the state. In re Estate of Coborn, 2015 WY 89, 352 P.3d 271, 2015 Wyo. LEXIS 101 (Wyo. 2015).

Cited in

Mathewson v. Estate of Nielsen (In re Estate of Nielsen), 2011 WY 71, 252 P.3d 958, 2011 Wyo. LEXIS 74 (Apr. 25, 2011).

§ 2-1-206. Proof of publication and service; filing with clerk.

1. The proof of publication of the notice required under W.S. 2-1-205(d) shall be by affidavit of the publisher.
2. The proof of service under W.S. 2-1-205(d) shall be signed by a distributee who signed the application or his attorney and shall state the name and address of the person served and the manner of service.
3. The affidavit for proof of publication and the proof of service shall be filed with the clerk of court prior to the court taking action on the application.
4. Proof of service by a distributee shall be signed under penalty of perjury.

History. Laws 2015, ch. 74, § 1.

Effective date. — Laws 2015, ch. 74, § 1, makes the act effective July 1, 2015.

§ 2-1-207. Missing distributees.

1. The person or persons claiming to be the distributee or distributees of the decedent who filed the application shall make reasonable efforts to identify and locate all living distributees of the decedent having a right to succeed to the interests of the decedent in the property described in the application. If all distributees are not located, the distributee or distributees filing the application shall advise the court of the efforts made to locate missing distributees. “Missing distributees” means distributees who were identified pursuant to this subsection but who could not be located. If a distributee cannot be located, the court shall grant the application as follows:
   1. In the case of an interest in real property, the interest shall be set over to the missing distributee or distributees if known; and
   2. In the case of all other interests, the court may direct that the share of the missing distributee or distributees be paid to the state treasurer under the Uniform Unclaimed Property Act, W.S. 34-24-101 through 34-24-140 .
2. The person or persons claiming to be a distributee or distributees of the decedent who filed the application shall report to the court upon payment of the share of the missing distributee or distributees.
3. The court may order the missing distributee’s or distributees’ share to be liquidated for value.

History. Laws 2015, ch. 74, § 1.

Effective date. — Laws 2015, ch. 74, § 1 makes the act effective July 1, 2015.

§ 2-1-208. Venue generally.

1. An application for a decree under W.S. 2-1-205 shall be filed as follows:
   1. If the decedent was a resident of Wyoming at the time of his death, in the county of which the decedent was a resident;
   2. If the decedent was not a resident of Wyoming at the time of his death, in a county in which any part of the estate is located.

History. Laws 2015, ch. 74, § 1.

Effective date. — Laws 2015, ch. 74, § 1, makes the act effective July 1, 2015.

§ 2-1-209. “Distributee” defined.

1. As used in this article, “distributee” means as defined in W.S. 2-1-301(a)(xiii) and includes any person who is a successor in interest to the decedent:
   1. As an heir;
   2. As a beneficiary;
   3. Through the intervening estates of the decedent’s heirs, beneficiaries, successors or assigns; or
   4. Through an established record of ownership.

History. Laws 2019, ch. 85, § 1.

Effective date. —

Laws 2019, ch. 85, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8 of the Wyo. Const. Approved February 26, 2019.

§ 2-1-301. Generally.

1. When used in this code, unless otherwise defined or required by the context, the following words and phrases shall be construed as follows:
   1. “Administrator” means any person appointed by the court to administer an intestate estate;
   2. “Bequeath” includes the word “devise” when used as a verb;
   3. “Bequest” includes the word “devise” when used as a noun;
   4. “Charges” include costs of administration, funeral expenses, cost of monument and federal and state estate taxes;
   5. “Child” includes an adopted child but does not include a grandchild or other more remote descendent;
   6. “Clerk” means clerk of the district court in the county in which the matter is pending and includes the term clerk of the probate court;
   7. “Conservator” means a person appointed by the court to have the custody and control of the property of a ward under the provisions of this code;
   8. “Costs of administration” include court costs, fiduciary’s fees, attorney fees, all appraisers’ fees, premiums on corporate surety bonds, cost of continuation of abstracts of title, recording fees, transfer fees, agents’ fees allowed by order of court, and all other fees and expenses allowed by order of court in connection with the administration of the estate;
   9. “Debts” include liabilities of the decedent which survive, whether arising in contract, tort or otherwise;
   10. “Devise” when used as a noun, means the testamentary disposition of property, both real and personal;
   11. “Devise” when used as a verb, means to dispose of property, both real and personal, by a will;
   12. “Devisee” includes legatee;
   13. “Distributee” means a person entitled to any property of the decedent under his will or under the statutes of intestate succession;
   14. “Estate” means the real and personal property of a decedent, a ward or a trust, as from time to time changed in form by sale, reinvestment or otherwise, and augmented by any accretions, additions or substitutions, or diminished by any decreases and distributions therefrom;
   15. “Executor” means any person appointed by the court to administer the estate of a testate decedent;
   16. “Fiduciary” means a personal representative, executor, administrator, guardian, conservator or trustee;
   17. “Full age” means the state of legal majority having attained the age of eighteen (18) years;
   18. “Guardian” means the person appointed by the court to have custody of the person of the ward under the provisions of this code;
   19. “Guardian of the property” means “conservator” and may be used at the election of the person appointed by the court to have the custody and care of the property of a ward;
   20. “Heir” means any person except the surviving spouse, who is entitled to property of a decedent under the statutes of intestate succession;
   21. “Incompetent” includes any person who has been adjudicated by a court to be incapable of managing his property, or caring for his own person, or both;
   22. “Issue” for the purposes of intestate succession, includes all lawful lineal descendents of a person, whether natural or adopted, except those who are the lineal descendents of his living descendents;
   23. “Legacy” means a testamentary disposition of personal property;
   24. “Legatee” means a person entitled to personal property under a will;
   25. “Letters” include letters testamentary, letters of administration, letters of guardianship, letters of conservatorship and letters of trusteeship;
   26. “Minor” means a person who has not attained the age of eighteen (18) years;
   27. “Person” includes natural persons and corporations;
   28. “Personal representative” includes executor and administrator;
   29. “Property” includes both real and personal property;
   30. “Surviving spouse” means the surviving wife or husband, as the case may be;
   31. “Temporary administrator” means any person appointed by the court to care for an estate pending the probating of a proposed will, or to handle any special matters designated by the court;
   32. “Trustee” means any person appointed as trustee by the instrument creating the trust, or any person appointed by the court to administer the trust;
   33. “Trusts” include only testamentary trusts; express trusts where jurisdiction is specifically conferred on the court by the trust instrument; express trusts where the jurisdiction of the court is invoked by the trustee, beneficiary or any interested party; and trusts which are established by a judgment or a decree of court which results in administration of the trust by the court;
   34. “Will” includes a codicil, a testamentary instrument that merely appoints an executor, or a testamentary instrument that merely revokes or revives another will.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1; 1993, ch. 1, § 1; 2016, ch. 39, § 2; 2019, ch. 125, § 1.

The 2016 amendment , effective July 1, 2016, inserted “defined or” following “unless otherwise” in (a).

The 2019 amendment, effective July 1, 2019, in (a)(v), deleted "nor, except as provided in Chapter 4, an illegitimate child."

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Meaning of “this code.” —

The term “this code” seems to mean the Wyoming Probate Code. See § 2-1-101 and notes thereto.

Applicability. —

Laws 2019, ch. 125 § 3, provides: "This act applies to all probate matters filed or commenced on or after the effective date of this act."

Standing.—

Granddaughter lacked standing to apply for a decree of summary distribution of the real property of her grandfather’s estate under Wyo. Stat. Ann. § 2-1-205 (2017) where the definition of distributee set forth in Wyo. Stat. Ann. § 2-1-301(a)(xiii) applied solely to persons who were entitled to property of a decedent through that decedent’s will or the statutes of intestate succession as applied to that decedent, the grandfather’s will had passed his assets and real property to his wife, and the granddaughter allegedly possessed an interest in the real property by way of several estates. In re Estate of Frank, 2019 WY 4, 432 P.3d 885, 2019 Wyo. LEXIS 3 (Wyo. 2019).

Applicability.—

Definition of distributee applies solely to persons who are entitled to property of a decedent through that decedent’s will or the statutes of intestate succession as applied to that decedent. Wyo. Stat. Ann. § 2-1-301(a)(xiii). In re Estate of Frank, 2019 WY 4, 432 P.3d 885, 2019 Wyo. LEXIS 3 (Wyo. 2019).

Applied in

Wetering v. Eisele, 682 P.2d 1055, 1984 Wyo. LEXIS 296 (Wyo. 1984); West v. Wyoming State Treas., 822 P.2d 1269, 1991 Wyo. LEXIS 193 (Wyo. 1991); In re Estate of Ronald, 2014 WY 129, 2014 Wyo. LEXIS 146 (Oct. 14, 2014).

Quoted in

In re Estate of Croft, 713 P.2d 782, 1986 Wyo. LEXIS 478 (Wyo. 1986).

Stated in

In re Estate of Campbell, 673 P.2d 645, 1983 Wyo. LEXIS 398 (Wyo. 1983).

Cited in

Strngari v. Taylor (In re Estate of Novakovich), 2004 WY 158, 101 P.3d 931, 2004 Wyo. LEXIS 203 (2004); Halliburton Energy Servs. v. Gunter, 2007 WY 151, 167 P.3d 645, 2007 Wyo. LEXIS 162 (Sept. 20, 2007).

Am. Jur. 2d, ALR and C.J.S. references. —

Word “child” or “children” in will as including grandchild or grandchildren, 30 ALR4th 319.

Wills: what constitutes “bank,” “checking,” or “savings” account, within meaning of bequest, 31 ALR4th 688.

Rights of inheritance as between kindred of whole and half blood, 47 ALR4th 561.

Adopted child as within class named in deed or inter vivos trust instrument, 37 ALR5th 237.

§ 2-1-401. Right to disclaim.

1. Any person may disclaim any interest in property which without a disclaimer he would receive by gift, bequest, devise, inheritance, beneficiary designation, the exercise of a power of appointment or would pass by right of survivorship.
2. Except to the extent a fiduciary’s right to disclaim is expressly restricted or limited by another statute of this state or by the instrument creating the fiduciary relationship, a fiduciary may disclaim any interest in property which without a disclaimer he would receive by gift, bequest, devise, inheritance, beneficiary designation, the exercise of a power of appointment or would pass by right of survivorship, whether acting in a personal or representative capacity. A fiduciary acting under a power of attorney shall have the right to disclaim an interest in property if expressly authorized to disclaim the interest under the terms of the instrument creating the power of attorney.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1; 1997, ch. 82, § 1; 2005, ch. 126, § 2.

The 2005 amendment designated the former undesignated paragraph as (a), and in (a) inserted “beneficiary designation, the exercise of a power of appointment” after “inheritance”; and added (b).

Laws 2005, ch. 126, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 25, 2005.

Am. Jur. 2d, ALR and C.J.S. references. —

Creditor's right to prevent debtor's renunciation of benefit under will or debtor's election to take under will, 39 ALR4th 633.

§ 2-1-402. Definitions.

1. As used in Article 4:
   1. “Any interest in property” includes, but is not limited to an undivided portion of an interest and a power with respect to property;
   2. “Disclaimer” means an irrevocable and unqualified refusal by a person to accept an interest in property;
   3. “Fiduciary” means a personal representative, trustee, agent acting under a power of attorney or other person authorized to act as a fiduciary with respect to the property of another person.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1; 2005, ch. 126, § 2.

The 2005 amendment added (a)(iii) and made a stylistic change.

Laws 2005, ch. 126, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 25, 2005.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Interest in property. —

Probate estate, personal representatives, and beneficiaries were awarded judgment on a chapter 7 trustee's complaint to set aside a debtor's renunciation of his interest as an heir under a will as a fraudulent conveyance under 11 U.S.C.S. § 548(a)(1), (2) because the renunciation passed the property directly from the testator to other beneficiaries, there was no transfer of an interest in the property, and the effect of the relation back provision under Wyo. Stat. Ann. § 2-1-404(a)(ii) was that the debtor never owned the interest. Royal v. Sanford (In re Sanford), 352 B.R. 885, 2006 Bankr. LEXIS 3555 (Bankr. D. Wyo. 2006).

§ 2-1-403. Qualification; effective date.

1. To qualify as a disclaimer:
   1. There shall be a written irrevocable and unqualified refusal by the disclaimant to accept an interest in property; and
   2. The writing shall be received by the transferor of the interest, his legal representative or the holder of the legal title to the property to which the interest relates within nine (9) months after the later of:
      1. The day on which the transfer creating the interest in the person is made; or
      2. The day on which the person attains age twenty-one (21); and
   3. The disclaimant has not accepted the interest or any of its benefits; and
   4. As a result of a refusal under this subsection, the interest passes without any direction on the part of the person making the disclaimer and passes either:
      1. To the spouse of the decedent; or
      2. To a person other than the person making the disclaimer.
2. A written transfer of the transferor’s entire interest in the property shall be treated as a qualified disclaimer if the written transfer:
   1. Meets requirements similar to the requirements of paragraphs (a)(ii) and (iii) of this section; and
   2. Is to a person who would have received the property if the transferor had made a qualified disclaimer within the meaning of subsection (a) of this section.
3. Nothing in this section shall be construed to prevent the disclaimant from benefits as an income beneficiary of any trust established by the transferor’s will.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1; 1987, ch. 80, § 1.

§ 2-1-404. Disposition of disclaimed interest.

1. Unless otherwise expressly provided in the deed of gift or will:
   1. The interest disclaimed reverts to the transferor if he is living on the date of disclaimer; or
   2. The interest disclaimed passes under the residuary clause of transferor’s will if he died prior to the disclaimer. If the disclaimant is a residuary beneficiary under the will the interest disclaimed passes as though the disclaimant did not survive the transferor.
2. If the transferor died intestate prior to the disclaimer, the interest disclaimed passes under the laws of descent and distribution as though the disclaimant did not survive the transferor.
3. If the interest disclaimed would have passed by right of survivorship, the interest shall pass as though the disclaimant was not a survivor.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1; 1987, ch. 73, § 1; 1997, ch. 82, § 1.

Relation back. —

Probate estate, personal representatives, and beneficiaries were awarded judgment on a chapter 7 trustee's complaint to set aside a debtor's renunciation of his interest as an heir under a will as a fraudulent conveyance under 11 U.S.C.S. § 548(a)(1), (2) because the renunciation passed the property directly from the testator to other beneficiaries, there was no transfer of an interest in the property, and the effect of the relation back provision under Wyo. Stat. Ann. § 2-1-404(a)(ii) was that the debtor never owned the interest. Royal v. Sanford (In re Sanford), 352 B.R. 885, 2006 Bankr. LEXIS 3555 (Bankr. D. Wyo. 2006).

Cited in

Norman v. Schulte, 107 B.R. 763, 1989 Bankr. LEXIS 2000 (Bankr. D. Wyo. 1989).

§ 2-1-405. Disclaimer on behalf of person under disability.

A duly appointed, qualified and acting guardian of the property of an incompetent or a person under the age of twenty-one (21) years may make a disclaimer on behalf of his ward, upon a showing satisfactory to the court having jurisdiction over the guardianship that the disclaimer is in the best interests of the ward. A guardian of the property may be appointed by the court for the sole purpose of filing with the court an application for approval of a disclaimer.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

§ 2-1-501. Disposal of controlled substances.

A person is authorized to collect any controlled substances of the decedent for purposes of disposal in accordance with 21 C.F.R. part 1317.30 and 21 C.F.R. part 1317.35.

History. Laws 2016, ch. 57, § 1.

Effective date. —

Laws 2016, ch. 57, § 3, makes the act effective July 1, 2016. Approved March 4, 2016.

§ 2-2-101. Exclusive jurisdiction conferred on district courts.

The district courts of the state have exclusive original jurisdiction of all matters relating to the probate and contest of wills and testaments, the granting of letters testamentary and of administration, and the settlement and distribution of decedents’ estates. The court granting the letters has exclusive jurisdiction of all matters touching the settlement and distribution of the estates for which letters have been granted. The jurisdiction over subject matter of the district court sitting in probate, sometimes referred to in this Title 2 as the “probate court”, is coextensive with the jurisdiction over subject matter of the district court in any civil action. A decree of distribution entered by the district court in probate, pursuant to W.S. 2-7-807 or 2-7-813 , shall be a final determination of title as to assets described therein, as to all distributees served with notice, or who have waived notice, of the hearing provided for in W.S. 2-7-807 or 2-7-811 , as the case may be. As to all other parties, an action may be brought and maintained at any time prior to the entry of final decree of distribution under W.S. 2-7-813 , by or against the personal representative in the district court, sitting in probate, seeking any legal or equitable remedy as to any interest in property, real or personal, in which the estate asserts or claims any interest. In addition, all causes cognizable in the district court in any civil action may be brought and maintained, at any time prior to the entry of final decree of distribution under W.S. 2-7-813, by or against a personal representative in the district court sitting in probate which granted the letters to the personal representative.

History. Laws 1890-91, ch. 70, art. 1, § 1; R.S. 1899, § 4531; C.S. 1910, § 5400; C.S. 1920, § 6673; R.S. 1931, § 88-201; C.S. 1945, § 6-101; W.S. 1957, § 2-3; W.S. 1977, § 2-2-101 ; Laws 1980, ch. 54, § 1; 1985, ch. 17, § 1.

Cross references. —

For venue provisions relating to nonresidents, see § 2-2-102 . See also § 2-2-103 .

Final order. —

Although the probate court never entered an order discharging the personal representative, the court's “Order Approving Final Report and Accounting, and Decree of Distribution” was a final appealable order as a matter of law, and was therefore not interlocutory in nature. There was no appeal from the decree, and it was final unless it was void. Jubie v. Dahlke (In re Estate of Dahlke), 2014 WY 29, 319 P.3d 116, 2014 Wyo. LEXIS 30 (Wyo. 2014).

Term “district court” is used in a broad or inclusive sense as if there were one district court in a given judicial district for several counties, and as if there were one district court in a given county for the several jurisdictions such as civil, criminal and probate. Gaunt v. Kansas Univ. Endowment Ass'n, 379 P.2d 825, 1963 Wyo. LEXIS 79 (Wyo. 1963).

Amending the definition of the jurisdiction of the district court sitting in probate so that it is “coextensive” with the subject matter jurisdiction of the district court in any civil action is not sufficient to vest exclusive jurisdiction in the probate court. Spear v. Nicholson, 882 P.2d 1237, 1994 Wyo. LEXIS 124 (Wyo. 1994).

Jurisdiction in probate matters limited and special. —

While in this state the district court is the court of general jurisdiction, and the same court has, by art. 5, § 10, Wyo. Const., jurisdiction of all matters of probate, yet, in the exercise of its probate powers, its jurisdiction is limited and special, and when its acts in probate are beyond the limits of the special jurisdiction conferred, they have no binding effect even upon those who have invoked its authority. In re Estate of Stringer, 80 Wyo. 389, 343 P.2d 508, 1959 Wyo. LEXIS 43 (1959), rehearing denied, 80 Wyo. 426, 345 P.2d 786 (1959), quoting Church v. Quiner, 31 Wyo. 222, 224 P. 1073, 1924 Wyo. LEXIS 22 (Wyo. 1924).

It extends to nonresidents. —

Where a nonresident dies within the state leaving personal property, the district court of the county where the person died leaving property therein has jurisdiction in administration of the estate. Bliler v. Boswell, 9 Wyo. 57, 59 P. 798, 1900 Wyo. LEXIS 3 (Wyo.), reh'g denied, 9 Wyo. 57, 59 P. 798, 1900 Wyo. LEXIS 4 (Wyo. 1900).

District court of county wherein is situated property of decedent who dies out of state and is nonresident has jurisdiction over probate of will of such decedent and to grant letters testamentary, or of administration with will annexed, as the case may require. Rice v. Tilton, 14 Wyo. 101, 82 P. 577, 1905 Wyo. LEXIS 34 (Wyo. 1905).

For venue provisions relating to nonresidents, see § 2-2-102 . See also § 2-2-103 .

Jurisdiction proper where trial court had granted letters of administration. —

Trial court had jurisdiction under this section to enter an order authorizing a personal representative to sell estate property because the decedent's interest in the subject property clearly touched upon the settlement of an estate for which the trial court had previously granted letters of administration. George v. Allen (In re Estate of George), 2003 WY 129, 77 P.3d 1219, 2003 Wyo. LEXIS 158 (Wyo. 2003).

Suit by hospital against personal representative of estate to recover $2,133.87, following the rejection of its claim, was in the exclusive jurisdiction of the county court, as provided in § 5-5-131 (now § 5-9-128 ), and not within the probate jurisdiction of the district court pursuant to this section. Ivinson Memorial Hosp. v. Swindler, 828 P.2d 1190, 1992 Wyo. LEXIS 41 (Wyo. 1992).

Actions by executors in foreign states. —

Generally, an executor cannot bring an action in courts of another state other than that in which he has been authorized to act, in absence of statutory authority. Security-First Nat'l Bank v. King, 46 Wyo. 59, 23 P.2d 851, 1933 Wyo. LEXIS 32 (Wyo. 1933).

Power over estate in guardianship. —

A court sitting in probate has power over the estate in a guardianship as it has over the estate of a decedent. Wayman v. Alanko, 351 P.2d 100, 1960 Wyo. LEXIS 55 (Wyo. 1960).

Including determination of title to property in dispute. —

Due mainly to the necessities of the case, when the guardian claims property belonging to the guardianship, the trial court, sitting in probate, has jurisdiction to determine the title to the property in dispute. Wayman v. Alanko, 351 P.2d 100, 1960 Wyo. LEXIS 55 (Wyo. 1960), quoting Security-First Nat'l Bank v. King, 46 Wyo. 59, 23 P.2d 851, 1933 Wyo. LEXIS 32 (Wyo. 1933).

Power to order decedent's store kept open. —

District court has power and jurisdiction in all matters of probate and jurisdiction to order that retail store owned by decedent be kept open during period of administration and that his administratrix be allowed fee for extraordinary service in management thereof. In re Austin's Estate, 37 Wyo. 313, 261 P. 130, 1927 Wyo. LEXIS 89 (Wyo. 1927).

Broad discretion in revocation of letters testamentary. —

The discretion of the appointing court in matters relating to revocation of letters testamentary is broad, and its exercise is subject to review only for abuse. In re Estate of Mayne, 345 P.2d 790, 1959 Wyo. LEXIS 54 (Wyo. 1959).

Presumption of regularity of proceedings of district court applies to proceedings in probate matters. Lethbridge v. Lauder, 13 Wyo. 9, 76 P. 682, 1904 Wyo. LEXIS 20 (Wyo. 1904).

The presumption of regularity that applies upon collateral attack to district court judgments in other cases applies with equal force to probate proceedings. Rice v. Tilton, 14 Wyo. 101, 82 P. 577, 1905 Wyo. LEXIS 34 (Wyo. 1905).

Whether paper propounded deemed “last will of the decedent” only issue in contested probate. —

Generally speaking, the remedy of a person injured by the violation of a contract for the execution of wills containing reciprocal bequests and bequests to third persons effective upon the death of the surviving testator is not to be had in a contest of the probate of the will which constitutes the violation of which complaint is made, since, in the absence of statute, the only issue on a contested probate is whether the paper propounded is “the last will of the decedent.” Estate of Stringer, 80 Wyo. 389, 343 P.2d 508, 1959 Wyo. LEXIS 43 (Wyo.), modified, In re Estate of Stringer, 80 Wyo. 426, 345 P.2d 786, 1959 Wyo. LEXIS 56 (Wyo. 1959).

And only matters affecting validity and subsistence of will to be considered. —

This section does not change the fact that in a proceeding for the probate of an instrument as the last will and testament of the deceased only matters affecting the validity and subsistence of the will should be considered, and any right or claim against the estate arising through contract must be asserted in an independent action against the administrator or the executor of the estate, as the case may be. Estate of Stringer, 80 Wyo. 389, 343 P.2d 508, 1959 Wyo. LEXIS 43 (Wyo.), modified, In re Estate of Stringer, 80 Wyo. 426, 345 P.2d 786, 1959 Wyo. LEXIS 56 (Wyo. 1959).

So one having contractual rights arising from previous will must rely on separate action. —

If anyone has contractual rights arising from previous wills, these claims and rights must be ascertained and adjudicated in a proper suit, separate and apart from the probate proceeding, which is, and must remain, exclusively one to determine the validity and subsistence of a last will and testament of the deceased, and any such action must, of course, be brought against the administrator or executor of deceased's estate, and any right or claim established must be satisfied during the administration of that estate. Estate of Stringer, 80 Wyo. 389, 343 P.2d 508, 1959 Wyo. LEXIS 43 (Wyo.), modified, In re Estate of Stringer, 80 Wyo. 426, 345 P.2d 786, 1959 Wyo. LEXIS 56 (Wyo. 1959).

Claims relating to events preceding decedent's death, tort claims and the exercise by the widow and her son of undue influence with respect to inter vivos transfers and trust amendments, were claims over which the district court had subject matter jurisdiction. Spear v. Nicholson, 882 P.2d 1237, 1994 Wyo. LEXIS 124 (Wyo. 1994).

Applied in

In re Estate of Brennan, 433 P.2d 512, 1967 Wyo. LEXIS 182 (Wyo. 1967); In re Estate of Reed, 566 P.2d 587, 1977 Wyo. LEXIS 270 (Wyo. 1977); Moncrief v. Williston Basin Interstate Pipeline Co., 880 F. Supp. 1495, 1995 U.S. Dist. LEXIS 3381 (D. Wyo. 1995).

Quoted in

First Wyo. Bank v. First Nat'l Bank & Trust Co., 628 P.2d 1355, 1981 Wyo. LEXIS 346 (Wyo. 1981).

Cited in

V-1 Oil Co. v. Ranck, 767 P.2d 612, 1989 Wyo. LEXIS 13 (Wyo. 1989); Strngari v. Taylor (In re Estate of Novakovich), 2004 WY 158, 101 P.3d 931, 2004 Wyo. LEXIS 203 (2004); Lon V. Smith Found. v. Devon Energy Corp., 2017 WY 121, 403 P.3d 997, 2017 Wyo. LEXIS 127 (Wyo. 2017).

Law reviews. —

For article, “The Ungrateful Living: An Estate Planner's Nightmare — The Trial Attorney's Dream,” see XXIV Land & Water L. Rev. 401 (1989).

Am. Jur. 2d, ALR and C.J.S. references. —

Exclusiveness of jurisdiction of probate court under doctrine of custodia legis, precluding replevin or similar possessory action, 42 A.L.R.2d 418.

§ 2-2-102. Venue generally.

1. Wills shall be proved and letters testamentary or of administration granted:
   1. In the county of which the decedent was a resident at the time of his death, regardless of where he may have died;
   2. In the county in which the decedent died, leaving estate therein, if the decedent was not a resident of the state at the time of his death;
   3. In the county in which any part of the estate may be, if the decedent died out of the state and was not resident thereof at the time of his death;
   4. In the county in which any part of the estate may be, if the decedent was not a resident of the state and did not leave estate in the county in which he died;
   5. In all other cases, in the county in which the decedent died, and application for letters is made.

History. Laws 1890-91, ch. 70, art. 2, § 1; R.S. 1899, § 4530; C.S. 1910, § 5407; C.S. 1920, § 6679; R.S. 1931, § 88-207; C.S. 1945, § 6-201; W.S. 1957, § 2-4; W.S. 1977, § 2-2-102 ; Laws 1980, ch. 54, § 1.

Cross references. —

As to venue generally, see §§ 1-5-101 to 1-5-108 .

As to change of venue or judge, see §§ 1-7-101 , 1-7-102 and Rule 40.1, W.R.C.P.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Where nonresident dies outside state and leaves property in certain county within state, district court of that county has jurisdiction to grant letters of administration. Rice v. Tilton, 14 Wyo. 101, 82 P. 577, 1905 Wyo. LEXIS 34 (Wyo. 1905).

Codicil executed in another state. —

When determining the validity of a codicil executed in another state by a Wyoming resident, Wyoming courts will apply the law of Wyoming unless the execution did not conform to the requirements of this title; only then will Wyoming courts be justified in turning to the law of the place where the codicil was executed. In re Estate of Zelikovitz, 923 P.2d 740, 1996 Wyo. LEXIS 126 (Wyo. 1996).

Admission to probate in state of domicile is not condition precedent to admission in another state where decedent leaves real or personal property. In re Smith's Estate, 55 Wyo. 181, 97 P.2d 677, 1940 Wyo. LEXIS 4 (Wyo. 1940).

Where a testator left real and personal property located in this state, the will may be probated in this state without waiting for the probate in the state where the testator resided and died. Rice v. Tilton, 13 Wyo. 420, 80 P. 828, 1905 Wyo. LEXIS 18 (Wyo. 1905).

But local administration needed to acquire bank deposits. —

As to money on deposit in a local bank belonging to testatrix who was domiciled in another state, it seems local administration would be necessary to invest representative with complete authority to require its return or payment from the bank. In re Smith's Estate, 55 Wyo. 181, 97 P.2d 677, 1940 Wyo. LEXIS 4 (Wyo. 1940).

Venue issue waived. —

Because the heirs did not raise the issue of improper venue in the trial court, but rather raised the issue of jurisdiction, they waived the right to address the issue of improper venue on appeal. George v. Allen (In re Estate of George), 2003 WY 129, 77 P.3d 1219, 2003 Wyo. LEXIS 158 (Wyo. 2003).

Cited in

Bliler v. Boswell, 9 Wyo. 57, 59 P. 798, 1900 Wyo. LEXIS 3 (1900).

Law reviews. —

See note, “The Curative Act and the Probate Code,” 3 Wyo. L.J. 204.

See “The Presumption of Death Problem in Title Examination,” 6 Wyo. L.J. 189.

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part II,” VIII Land & Water L. Rev. 187 (1973).

Am. Jur. 2d, ALR and C.J.S. references. —

Probate, in state where assets are found, of will of nonresident which has not been admitted to probate in state of domicile, 20 ALR3d 1033.

§ 2-2-103. Jurisdiction of estate of nonresident.

When the estate of the decedent is in more than one (1) county, the decedent having died out of the state and not being a resident thereof at the time of his death, or being a nonresident and dying within the state but not leaving estate in the county where he died, the district court of that county in which application is first made for letters testamentary or of administration has exclusive jurisdiction of the settlement of the estate.

History. Laws 1890-91, ch. 70, art. 2, § 2; R.S. 1899, § 4538; C.S. 1910, § 5408; C.S. 1920, § 6680; R.S. 1931, § 88-208; C.S. 1945, § 6-202; W.S. 1957, § 2-5; W.S. 1977, § 2-2-103 ; Laws 1980, ch. 54, § 1.

Law reviews. —

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part II,” VIII Land & Water L. Rev. 187 (1973).

§ 2-2-104. Court to remain open.

For the purpose of granting probate of wills, issuing letters testamentary and of administration, filing reports, accounts and petitions of personal representatives, filing claims against the estate and issuing process and notices required by the Probate Code, the court shall operate under the same term of court as specified in W.S. 5-3-101(b).

History. Laws 1890-91, ch. 70, art. 1, § 2; R.S. 1899, § 4532; C.S. 1910, § 5401; C.S. 1920, § 6674; R.S. 1931, § 88-202; C.S. 1945, § 6-102; W.S. 1957, § 2-6; W.S. 1977, § 2-2-104 ; Laws 1980, ch. 54, § 1; 2019, ch. 54, § 1.

The 2019 amendment, effective July 1, 2019, substituted "the court shall operate under the same term of court as specified in W.S. 5-3-101(b)" for "the court shall be kept open in the vacation period, and the business pertaining thereto done by the court commissioner and the clerk, shall be subject to the supervision of the court at the next ensuing term."

Meaning of “Probate Code.” —

The term “Probate Code” refers to the Wyoming Probate Code. See § 2-1-101 and notes thereto.

Cited in

In re Austin's Estate, 37 Wyo. 313, 261 P. 130, 1927 Wyo. LEXIS 89 (1927).

§ 2-2-105. Orders in vacation to be written, filed and recorded. [Repealed]

History. Laws 1890-91, ch. 70, art. 1, § 3; R.S. 1899, § 4533; C.S. 1910, § 5402; C.S. 1920, § 6675; R.S. 1931, § 88-203; C.S. 1945, § 6-103; W.S. 1957, § 2-7; W.S. 1977, § 2-2-105 ; Laws 1980, ch. 54, § 1; Repealed by Laws 2019, ch. 54, § 2.

§ 2-2-106. Powers and duties of court commissioners; generally.

The court commissioner of each district court shall, upon a general order made for that purpose, examine the bonds filed by the personal representatives, with a view to ascertaining their sufficiency, and may approve the same. He may examine any inventory, sale bill, account current, except final accounts and vouchers filed therewith, or examine into the condition of an estate generally. Upon a specific order of the court, the commissioner may make orders for the sale of personal property at public or private auction, for the compounding of debts, for the settlement of an estate as insolvent, for the approval of bonds and all other orders of an ex parte nature as may facilitate the settlement of estates. The orders shall be in writing, signed by the judge or commissioner issuing the same, and shall be filed and recorded.

History. Laws 1890-91, ch. 70, art. 1, § 4; R.S. 1899, § 4534; C.S. 1910, § 5403; C.S. 1920, § 6676; R.S. 1931, § 88-204; C.S. 1945, § 6-104; W.S. 1957, § 2-8; W.S. 1977, § 2-2-106 ; Laws 1980, ch. 54, § 1; 2019, ch. 54, § 1.

The 2019 amendment, effective July 1, 2019, substituted "district court shall, upon a general order" for "district court shall, upon the order of the court in vacation, or upon a general order" in the first sentence and added the third and fourth sentences.

Cross references. —

As to fees of court commissioner in probate matters, see § 2-2-404 .

As to bond of executors and administrators generally, see §§ 2-3-102 to 2-3-120 .

As to appointment of administrator of an estate by judge or court or commissioner thereof in vacation, see § 2-4-202 .

As to granting of injunctions by district court or a judge thereof or, in the absence from the county of such judge, by the court commissioner of the county, see §§ 1-28-101 to 1-28-111 .

As to court commissioners generally, see §§ 5-3-301 to 5-3-312 .

§ 2-2-107. Powers and duties of court commissioners; compelling attendance of witnesses; process.

In order to make such examination, the court commissioner is entitled to process to compel the personal representative and other witnesses to appear and testify before him on the hearing, and for the production of books, papers, monies or other things pertinent to the matter to be heard.

History. Laws 1890-91, ch. 70, art. 1, § 4; R.S. 1899, § 4535; C.S. 1910, § 5404; C.S. 1920, § 6677; R.S. 1931, § 88-205; C.S. 1945, § 6-105; W.S. 1957, § 2-9; W.S. 1977, § 2-2-107 ; Laws 1980, ch. 54, § 1.

§ 2-2-108. Powers and duties of court commissioners; compelling attendance of witnesses; failure to appear or testify.

Any person refusing to appear or testify before a commissioner may be cited for contempt and held to bail to answer to the alleged contempt as soon as reasonably possible. The commissioner shall report his findings upon the matter in writing, to the court for its action. Exception may be filed to the report which shall be heard and determined as in other cases.

History. Laws 1890-91, ch. 70, art. 1, § 4; R.S. 1899, § 4536; C.S. 1910, § 5405; C.S. 1920, § 6678; R.S. 1931, § 88-206; C.S. 1945, § 6-106; W.S. 1957, § 2-10; W.S. 1977, § 2-2-108 ; Laws 1980, ch. 54, § 1; 2019, ch. 54, § 1.

The 2019 amendment, effective July 1, 2019, substituted “testify before a commissioner” for “testify in vacation,” and “alleged contempt as soon as reasonably possible” for “alleged contempt at the next term of court” in the first sentence.

Cited in

Mau v. Stoner, 12 Wyo. 478, 76 P. 584, 1904 Wyo. LEXIS 14 (1904).

§ 2-2-109. Authority of other judges to act when district judge sick.

Whenever any judge of the district court is absent from the state, sick or otherwise unable to attend to the duties of his office, any other district judge shall have the same powers as the original judge, including the power to examine into all matters, make all orders and direct the affairs of the administration of estates.

History. Laws 1890-91, ch. 70, art. 28, § 2; R.S. 1899, § 4564; C.S. 1910, § 5493; C.S. 1920, § 6766; R.S. 1931, § 88-1504; C.S. 1945, § 6-110; W.S. 1957, § 2-14; W.S. 1977, § 2-2-112; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1; 2019, ch. 54, § 1.

The 2019 amendment, effective July 1, 2019, substituted "district judge shall have the same powers as the original judge, including the power to examine into all matters, make all orders and direct the affairs of the administration of estates" for "district judge may, upon application, examine into all matters, make all orders, and direct the affairs of the administration of estates that are required to be performed by judges in vacation, and shall have the same powers as the original judge would have."

Cross references. —

For provision that judges of district court shall hold court for each other, see § 5-3-106 .

As to assignment of retired judge to hold court, see § 5-3-107 .

§ 2-2-110. When judge disqualified; exception.

When the judge before whom probate matters are brought is interested as next of kin to the decedent, or as the legatee or devisee under the will, or has any other interest in the outcome of, or concerning the matters brought before him, he shall call in some other district judge to hear and determine all such matters. Being a witness to a will does not itself disqualify a district judge, after the will has been probated, from hearing any matters concerning the will or the estate being probated except matters relating to the admission of the will to probate and contests thereon, and the granting of letters testamentary or of administration thereunder.

History. Laws 1890-91, ch. 70, art. 10, § 8; R.S. 1899, § 4621; C.S. 1910, § 5481; C.S. 1920, § 6754; Laws 1921, ch. 8, § 1; R.S. 1931, § 88-1201; C.S. 1945, § 6-1208; W.S. 1957, § 2-15; W.S. 1977, § 2-2-113; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cross references. —

As to change of venue or judge, see §§ 1-7-101 , 1-7-102 and Rule 40.1, W.R.C.P.

Am. Jur. 2d, ALR and C.J.S. references. —

Disqualification of judge under 28 USC § 455(b)(5)(iii), where judge or his or her spouse, or certain of their relatives, is known to have an interest that could be affected by the proceeding, 54 ALR Fed 855.

§ 2-2-111. Presumption after ten years notices properly given.

In any estate, wherein a decree of final settlement and distribution is or has been entered by any court of this state it shall, after ten (10) years from the date of the decree, be conclusively presumed that all notices required by law have been made and for the times and in the manner required by law.

History. Laws 1939, ch. 107, § 1; 1945, ch. 78, § 1; C.S. 1945, § 6-2309; W.S. 1957, § 2-16; W.S. 1977, § 2-2-114; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

As to conveyances validated generally, see §§ 34-5-101 to 34-5-117 .

Section makes conclusive presumption that all required notices are published. Davidek v. Wyoming Inv. Co., 77 Wyo. 141, 308 P.2d 941, 1957 Wyo. LEXIS 13 (Wyo. 1957).

It cannot be upheld as applied to notices deemed jurisdictional. —

This section is all-inclusive and creates a conclusive presumption that all notices required by law have been published for the times and in the manner required by law. That includes notices which are jurisdictional — that is to say, notices which are essential in order to constitute due process of law — and in that respect, the section considered as a curative act cannot be upheld. Addison v. Fleenor, 65 Wyo. 119, 196 P.2d 991, 1948 Wyo. LEXIS 20 (Wyo. 1948).

But proceedings insofar as nonjurisdictional seemingly validated. —

In view of the fact that the legislature of Wyoming undertook to legislate in this section as to all notices in probate proceedings, there is no reason to think that it would not have validated proceedings insofar as they are nonjurisdictional. Addison v. Fleenor, 65 Wyo. 119, 196 P.2d 991, 1948 Wyo. LEXIS 20 (Wyo. 1948).

Notice to creditors and notice to set aside homestead would be jurisdictional, unless they were nonjurisdictional because the court already had jurisdiction of, or against, the parties and of the subject matter by reason of some notice in the probate proceeding previously given. Addison v. Fleenor, 65 Wyo. 119, 196 P.2d 991, 1948 Wyo. LEXIS 20 (Wyo. 1948).

Since the provisions of §§ 2-4-211 , 2-4-212 and 2-7-703 contemplate that claims of an estate shall be presented promptly and may be filed before notice to creditors is given, and since claims of creditors are barred by the general statute of limitations of not more than 10 years, the curative provisions of this section do not invade any constitutional rights in connection with such claims where there was a failure to give notice to creditors which was not jurisdictional. Addison v. Fleenor, 65 Wyo. 119, 196 P.2d 991, 1948 Wyo. LEXIS 20 (Wyo. 1948).

Where a failure to give notice of the setting off of a homestead was not jurisdictional, that failure could be healed by the curative provisions of this section. Addison v. Fleenor, 65 Wyo. 119, 196 P.2d 991, 1948 Wyo. LEXIS 20 (Wyo. 1948).

Law reviews. —

See note, “The Curative Act and the Probate Code,” 3 Wyo. L.J. 204.

§ 2-2-201. Records required to be kept; probate docket; reports to be made by commissioner.

1. The clerk  of district court in each county shall maintain a  system for the recording of wills and probate including:
   1. Proceedings of the guardianship of infants and incompetent persons;
   2. All letters testamentary and of administration;
   3. All inventories and records of sales of personal estate;
   4. A general entry, claim and allowance docket.
2. The clerk of district court shall maintain  a system for the recording of each decedent’s  estate including all proceedings concerning  the probate of each will, the entry of the inventory appraisement, all  claims allowed, including costs of the final distribution of the estate,  and the final  settlement of the estate.
3. The clerk of court shall prepare for the use of the court a probate docket containing:
   1. All appointments made;
   2. All pending petitions for the sale of real estate, including the parties thereto;
   3. All pending petitions for the release of sureties;
   4. All pending petitions for the removal of personal representatives.
4. The court commissioner is bound to furnish:
   1. The record of all reports and accounts filed;
   2. All claims against the estate pending for trial;
   3. All delinquencies of personal representatives to discharge any duty in the manner or within the time required by law or order of the court.

History. Laws 1890-91, ch. 70, art. 1, § 5; R.S. 1899, § 4561; C.S. 1910, § 5490; C.S. 1920, § 6763; R.S. 1931, § 88-1501; C.S. 1945, § 6-107; W.S. 1957, § 2-11; W.S. 1977, § 2-2-109 ; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1; 2019, ch. 24, § 1; ch. 54, § 1.

Cross references. —

For other provisions relating to the probate docket, see § 2-2-202 .

As to clerk of district court generally, see §§ 5-3-201 to 5-3-213 .

The 2019 amendments. —

The first 2019 amendment, by ch. 24, § 1, effective July 1, 2019, in (a), substituted “maintain a system” for “keep a book” and substituted “including” for “containing”; in (b), substituted “The clerk of district court shall maintain a system for the recording of” for “A separate set of books shall be kept for” and substituted “including” for “recording,” deleted “and showing” preceding “the entry,” substituted “appraisement, all claims” for “appraisement and all claims” and deleted “showing” preceding “the final settlement.”

The second 2019 amendment, by ch. 54, § 1, effective July 1, 2019, in the introductory language of (c), substituted “of the court” for “of the court at each term”; in (c)(i), substituted “made” for “made in vacation”; in (d)(i), substituted “filed” for “filed in vacation”; and in (d)(ii), substituted “for trial” for “for trial at each term of court.”

Applied in

In re Estate of Haddenham, 358 P.2d 706, 1961 Wyo. LEXIS 72 (Wyo. 1961).

§ 2-2-202. Preparation and contents of probate docket; distribution of copies; call of docket.

1. At least once every six (6) months, the  clerk of the district court in each county of the state shall make  a docket of all estates of deceased persons pending in his county  which shall include:
   1. Title of the estate;
   2. Date of letters testamentary or letters of administration;
   3. Name or names of the executors or administrators; and
   4. The names of the attorneys of record.
2. As soon as the docket is made, one (1) copy shall be furnished to the judge of the district court of his county and one (1) copy shall be furnished upon request to each attorney of record in the estates.
3. The judge  of the district court in each county shall, at least once every six (6) months, read the probate  docket in open court and shall make an order in each estate as he  deems necessary to expedite the progress and closing thereof.

History. Laws 1943, ch. 105, § 11; C.S. 1945, § 6-108; W.S. 1957, § 2-12; W.S. 1977, § 2-2-110 ; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1; 2019, ch. 54, § 1.

The 2019 amendment, effective July 1, 2019, in (a), substituted “At least once every six (6) months” for “Not less than ten (10) days before the first day of the term of the district court” and in (b), substituted “at least once every six (6) months” for “upon the call of the docket after the first day of a regular term of court.”

Applied in

In re Estate of Haddenham, 358 P.2d 706, 1961 Wyo. LEXIS 72 (Wyo. 1961).

Cited in

In re Estate of Mayne, 345 P.2d 790 (Wyo. 1959).

§ 2-2-203. Authority to approve bonds.

All bonds required by this act may be approved by the clerk of the district court wherein they are required to be filed.

History. Laws 1890-91, ch. 70, art. 28, § 1; R.S. 1899, § 4563; C.S. 1910, § 5492; C.S. 1920, § 6765; R.S. 1931, § 88-1503; C.S. 1945, § 6-109; W.S. 1957, § 2-13; W.S. 1977, § 2-2-111 ; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cross references. —

As to justification of sureties, see § 1-1-104 .

As to qualifications of sureties, see § 1-1-105 .

As to bond of executors and administrators generally, see §§ 2-3-102 to 2-3-120 .

Meaning of “this act.” —

For the meaning of the term “this act,” see § 2-1-101 and notes thereto.

§ 2-2-301. Contents of orders and decrees; recording.

Orders and decrees of the court in probate proceedings need not recite the existence of facts or the performance of acts upon which the jurisdiction of the court or judge may depend, but need only contain the matters ordered or adjudged, except as otherwise provided in this chapter. All orders, judgments and decrees of the court shall be entered at length in the proper journal of the court. When a judgment or decree is made setting apart a homestead, confirming a sale, making a distribution of real property, or determining any other matter affecting the title to real property, a certified copy shall be recorded in the office of the county clerk of the county in which the property is situated.

History. Laws 1890-91, ch. 70, art. 20, § 1; R.S. 1899, § 4542; C.S. 1910, § 5458; C.S. 1920, § 6730; Laws 1921, ch. 144, § 1; R.S. 1931, § 88-901; C.S. 1945, § 6-2701; W.S. 1957, § 2-17; W.S. 1977, § 2-2-201 ; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Meaning of “this chapter.” —

The term “this chapter” refers to provisions enacted in the original 1890-91 Probate Code and should read “this article” now.

District court's orders need not recite jurisdictional facts. Rice v. Tilton, 14 Wyo. 101, 82 P. 577, 1905 Wyo. LEXIS 34 (Wyo. 1905).

Presumption facts authorize appointment of special administrator. —

Under this section it will be presumed, in the absence of a showing to the contrary, that the facts authorize a district court in administration proceedings to appoint a special administrator, although the order granting letters of special administration does not show the removal, suspension or resignation of the prior administrator. Lethbridge v. Lauder, 13 Wyo. 9, 76 P. 682, 1904 Wyo. LEXIS 20 (Wyo. 1904).

Stated in

Lon V. Smith Found. v. Devon Energy Corp., 2017 WY 121, 403 P.3d 997, 2017 Wyo. LEXIS 127 (Wyo. 2017).

Applied in

Davidek v. Wyoming Inv. Co., 77 Wyo. 141, 308 P.2d 941, 1957 Wyo. LEXIS 13 (1957).

Cited in

Poston v. Delfelder, 39 Wyo. 163, 270 P. 1068, 1928 Wyo. LEXIS 93 (1928).

Law reviews. —

See note, “Probate Procedure — Distinctions Between the Probate and Civil Arms of the District Courts,” 19 Wyo. L.J. 241 (1965).

Am. Jur. 2d, ALR and C.J.S. references. —

Interest on decree or judgment of probate court allowing a claim against estate or making an allowance for services, 54 ALR2d 814.

§ 2-2-302. Notice imparted from date of recording.

When it is provided in this chapter that any order or decree of the court shall be recorded in the office of the county clerk, notice is imparted to all persons from the time of recording.

History. Laws 1890-91, ch. 70, art. 20, § 2; R.S. 1899, § 4543; C.S. 1910, § 5459; C.S. 1920, § 6731; R.S. 1931, § 88-902; C.S. 1945, § 6-2702; W.S. 1057, § 2-18; W.S. 1977, § 2-2-202 ; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Meaning of “this chapter.” —

The term “this chapter” refers to provisions enacted in the original 1890-91 Probate Code and should read “this article” now.

§ 2-2-303. Citations; requirements generally; contents.

1. Citations shall be directed to the person to be cited, signed by the clerk, and issued under the seal of the court, and shall contain:
   1. The title of the proceeding;
   2. A brief statement of the nature of the proceeding; and
   3. A direction that the person cited appear at a time and place specified.

History. Laws 1890-91, ch. 70, art. 20, § 3; R.S. 1899, § 4544; C.S. 1910, § 5460; C.S. 1920, § 6732; R.S. 1931, § 88-903; C.S. 1945, § 6-2703; W.S. 1957, § 2-19; W.S. 1977, § 2-2-203 ; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 2-2-304. Citations; issuance.

The citation may be issued by the clerk upon the application of any party, without an order of the judge or commissioner, except in cases in which an order is expressly required by the provisions of this chapter.

History. Laws 1890-91, ch. 70, art. 20, § 4; R.S. 1899, § 4545; C.S. 1910, § 5461; C.S. 1920, § 6733; R.S. 1931, § 88-904; C.S. 1945, § 6-2704; W.S. 1957, § 2-20; W.S. 1977, § 2-2-204; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Meaning of “this chapter.” —

The term “this chapter” refers to provisions enacted in the original 1890-91 Probate Code and should read “this article”.

Applied in

Merrill v. District Court, 73 Wyo. 58, 272 P.2d 597, 1954 Wyo. LEXIS 12 (1954).

§ 2-2-305. Citations; service.

The citation shall be served in the same manner as a summons in a civil action.

History. Laws 1890-91, ch. 70, art. 20, § 5; R.S. 1899, § 4546; C.S. 1910, § 5462; C.S. 1920, § 6734; R.S. 1931, § 88-905; C.S. 1945, § 6-2705; W.S. 1957, § 2-21; W.S. 1977, § 2-2-205; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cross references. —

As to service of process generally, see §§ 1-6-101 to 1-6-301 .

As to service of process by sheriff, see § 18-3-604 .

§ 2-2-306. Citations; used to give personal notice.

When a personal notice is required, and no mode of giving it is prescribed in this chapter, it shall be given by citation.

History. Laws 1890-91, ch. 70, art. 20, § 6; R.S. 1899, § 4547; C.S. 1910, § 5463; C.S. 1920, § 6735; R.S. 1931, § 88-906; C.S. 1945, § 6-2706; W.S. 1957, § 2-22; W.S. 1977, § 2-2-206; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1; 2010, ch. 69, § 207.

The 2010 amendment, effective July 1, 2010, substituted “prescribed in this chapter” for “prescribed in this act.”

Meaning of “this act.” —

For the meaning of the term “this act,” see § 2-1-101 .

Section applies to examination of persons possessing decedent's property. —

The provisions of this section are applicable in proceedings under § 2-7-412 requiring persons believed to be in possession of decedent's property to submit to examination touching such property, since no mode as to giving notice is provided in §§ 2-7-412 to 2-7-414 .State ex rel. Poston v. District Court, 31 Wyo. 413, 227 P. 378, 1924 Wyo. LEXIS 35 (Wyo. 1924).

§ 2-2-307. Citations; when to be served.

When no other time is specially prescribed in this chapter, citations shall be served at least five (5) days before the return day thereof.

History. Laws 1890-91, ch. 70, art. 20, § 7; R.S. 1899, § 4548; C.S. 1910, § 5464; C.S. 1920, § 6736; R.S. 1931, § 88-907; C.S. 1945, § 6-2707; W.S. 1957, § 2-23; W.S. 1977, § 2-2-207; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1; 2010, ch. 69, § 207.

Cross references. —

As to amercement of officer for failure to serve or return process, see § 1-24-103 .

The 2010 amendment, effective July 1, 2010, substituted “prescribed in this chapter” for “prescribed in this act.”

Meaning of “this act.” —

For the meaning of the term “this act,” see § 2-1-101 and notes thereto.

§ 2-2-308. Provisions of Rules of Civil Procedure applicable; parties.

Except as otherwise provided in the Probate Code, the provisions of the Wyoming Rules of Civil Procedure are applicable to and constitute the rules of practice for all proceedings, new trials or appeals. In all proceedings the party affirming is contestant and the one denying or avoiding is contestee.

History. Laws 1890-91, ch. 70, art. 20, § 9; R.S. 1899, § 4550; C.S. 1910, § 5466; C.S. 1920, § 6738; Laws 1921, ch. 144, § 2; R.S. 1931, § 88-909; C.S. 1945, § 6-2709; W.S. 1957, § 2-24; W.S. 1977, § 2-2-208; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

For the Wyoming Rules of Civil Procedure, see the Wyoming Court Rules Annotated .

As to procedure when applicant for public land dies before patent is issued, see § 2-9-204 .

Editor's notes. —

Prior to the 1980 revision of title 2, this section provided for the applicability of the Code of Civil Procedure to probate proceedings.

Meaning of “Probate Code.” —

The term “Probate Code” refers to the Wyoming Probate Code. See § 2-1-101 and notes thereto.

It need not be alleged that funeral expenses are reasonable. Sowers v. King, 32 Wyo. 167, 231 P. 411, 1924 Wyo. LEXIS 60 (Wyo.), reh'g denied, 32 Wyo. 167, 238 P. 540, 1924 Wyo. LEXIS 61 (Wyo. 1924).

Modification of judgment after term. —

The provision of § 1-16-401 that the district court may modify its judgment after term for “irregularity in obtaining a judgment or order” was held applicable in probate matters by virtue of this section. In re Estate of Jansen, 76 Wyo. 430, 305 P.2d 422, 1957 Wyo. LEXIS 5 (Wyo. 1957) (decided prior to 1980 revision).

Applied in

In re Estate of Wilson, 399 P.2d 1008, 1965 Wyo. LEXIS 126 (Wyo. 1965).

Quoted in

Strngari v. Taylor (In re Estate of Novakovich), 2004 WY 158, 101 P.3d 931, 2004 Wyo. LEXIS 203 (2004).

§ 2-2-309. Trial by court or jury.

If no jury is demanded, the court shall try the issues joined. If, on written demand, a jury is called for by either party in a matter triable under W.S. 2-2-308 , one shall be had as in other civil cases.

History. Laws 1890-91, ch. 70, art. 20, § 11; R.S. 1899, § 4552; C.S. 1910, § 5468; C.S. 1920, § 6740; R.S. 1931, § 88-912; C.S. 1945, § 6-2711; W.S. 1957, § 2-26; W.S. 1977, § 2-2-210; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

As to trial by jury generally, see Rule 38, W.R.C.P., et seq.

Jury trial on widow's allowances. —

When jury was demanded on trial of claim by widow to have homestead and other property set aside, granting jury trial was proper. In re Kiesel's Estate, 35 Wyo. 300, 249 P. 81, 1926 Wyo. LEXIS 18 (Wyo. 1926).

Cited in

Weidenhoft v. Primm, 16 Wyo. 340, 94 P. 453, 1908 Wyo. LEXIS 28 (1908); In re Barrett's Estate, 22 Wyo. 281, 138 P. 865, 1914 Wyo. LEXIS 10 (1914).

§ 2-2-310. Appointment of attorney for minors or nonresidents; compensation; failure to appoint of no effect.

At or before the hearing of petitions and contests for the probate of wills, for letters testamentary or of administration, for sales of real estate and confirmation thereof, settlements, partitions, and distribution of estates, setting apart homesteads, and all other proceedings where all the parties interested in the estate are required to be notified, the court may appoint an attorney-at-law to represent the devisees, legatees, heirs or creditors of the decedent who are minors and have no general guardian in the county, or who are nonresidents of the state, and those interested who, though they are neither minors or nonresidents, are unrepresented. The order shall specify the names of the parties, so far as known, for whom the attorney is appointed. The attorney may receive a fee, to be fixed by the court, for his services, which shall be paid out of the funds of the estate as necessary expenses of administration, and upon distribution may be charged to the party represented by the attorney. If, for any cause, it becomes necessary, the court may substitute another attorney for the one first appointed, in which case the fee shall be proportionately divided. The failure to appoint an attorney will not affect the validity of any of the proceedings.

History. Laws 1890-91, ch. 70, art. 20, § 12; R.S. 1899, § 4553; C.S. 1910, § 5469; C.S. 1920, § 6741; R.S. 1931, § 88-913; C.S. 1945, § 6-2712; W.S. 1957, § 2-27; W.S. 1977, § 2-2-211; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cross references. —

As to actions against executors and administrators for waste, conversion and trespass, see § 2-7-106 .

§ 2-2-311. Payment of costs.

When it is not otherwise prescribed in this chapter, the district court, or the supreme court on appeal, may order costs to be paid by any party to the proceedings, or out of the assets of the estate. Execution for the costs may issue out of the court.

History. Laws 1890-91, ch. 70, art. 20, § 13; R.S. 1899, § 4554; C.S. 1910, § 5470; C.S. 1920, § 6742; R.S. 1931, § 88-914; C.S. 1945, § 6-2713; W.S. 1957, § 2-28; W.S. 1977, § 2-2-212; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1; 2010, ch. 69, § 207.

Cross references. —

As to fees, see § 2-2-401 et seq.

The 2010 amendment, effective July 1, 2010, substituted “prescribed in this chapter” for “prescribed in this act.”

Meaning of “this act.” —

For the meaning of the term “this act,” see § 2-1-101 and notes thereto.

Discretion of court to require payment only of own costs. —

In will contest proceedings, where the estate of an insane person was larger than that of her deceased husband, which was scarcely large enough to cover the widow's exemptions allowed by law, the trial court did not abuse its discretion in requiring estate of deceased to pay only its own costs. Johnston v. Laird, 48 Wyo. 532, 52 P.2d 1219, 1935 Wyo. LEXIS 52 (Wyo. 1935).

Am. Jur. 2d, ALR and C.J.S. references. —

Allowance as costs, of such items as maps, models, wall charts, photographs, and the like, in probate proceedings, 97 A.L.R.2d 138.

§ 2-2-312. Service of process on guardian; right of guardian to waive.

Whenever an infant or incompetent person has a guardian of his estate residing in this state, personal service upon the guardian of any process, notice or order of the court concerning the estate of a deceased person in which the ward is interested is equivalent to service upon the ward, and it is the duty of the guardian to attend to the interests of the ward in the matter. The guardian may also appear for his ward and waive any process, notice or order to show cause which an adult or a person of sound mind might waive.

History. Laws 1890-91, ch. 70, art. 20, § 14; R.S. 1899, § 4555; C.S. 1910, § 5471; C.S. 1920, § 6743; R.S. 1931, § 88-915; C.S. 1945, § 6-2714; W.S. 1957, § 2-29; W.S. 1977, § 2-2-213; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

§ 2-2-401. Schedule; additional charges.

1. For probate matters filed or commenced, the clerk of the district court shall collect fees as follows:
   1. Original filing fee  . . . . .  $110.00
   2. When an inventory or appraisement is filed showing an estate or guardianship valued at five thousand dollars ($5,000.00) or more, additional fees based upon value shall be collected as follows:
      1. Value five thousand dollars ($5,000.00) to ten thousand  dollars ($10,000.00)  . . . . .  $5.00
      2. Each additional ten thousand dollars ($10,000.00) of  value or portion thereof  . . . . .  $5.00
   3. In addition to the original filing fee under paragraph (a)(i) of this subsection, a court automation fee in the amount of forty dollars ($40.00) which shall be deposited into the judicial systems automation account established by W.S. 5-2-120 ;
   4. In addition to the original filing fee under paragraph (a)(i) of this subsection, an indigent civil legal services fee in the amount of ten dollars ($10.00), which shall be deposited into the indigent civil legal services account established by W.S. 5-2-121 .
2. The original filing fee shall cover the general filing activity of the clerk’s office and a certification of one (1) copy of any order, decree or judgment at the time of its filing for each party. Other copy charges and certification fees shall be assessed at the same amount as established for other business of the court.
3. Additional fees or charges may be assessed for particular matters as ordered by the court.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1; 2000, ch. 25, § 2; 2010, ch. 109, § 2; 2017, ch. 105, § 1; 2019, ch. 171, § 1; 2020, ch. 66, § 1.

The 2010 amendment, effective July 1, 2010, added (a)(iv).

The 2017 amendment , effective July 1, 2017, in (a)(iii), substituted “twenty-five dollars ($25.00)” for “ten dollars ($10.00).”

The 2019 amendment, effective July 1, 2019, in (a)(i), substituted “$110.00” for “$50.00,” and in (a)(iii), substituted “thirty dollars ($30.00)” for “twenty-five dollars ($25.00).”

The 2020 amendment, effective July 1, 2020, in (a)(iii) substituted “forty dollars ($40.00)” for “thirty dollars ($30.00).”

§ 2-2-402. Responsibility of clerk for collection; distribution.

The clerk of the district court of each county is responsible upon his bond for the collection or payment of any fees in probate matters which are to be collected by him or when the court orders fees to be paid to the clerk for fees not specially provided for in W.S. 2-2-401 . All of the fees shall be paid to the county treasurer at the end of each month.

History. Laws 1905, ch. 75, § 2; C.S. 1910, § 5453; C.S. 1920, § 6725; R.S. 1931, § 88-802; C.S. 1945, § 6-2802; Laws 1951, ch. 154, § 2; W.S. 1957, § 2-31; W.S. 1977, § 2-2-302 ; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

§ 2-2-403. Allowance where not specially provided.

When there are no fees specially provided for the performance of any duty under the Probate Code, reasonable fees may be ordered and allowed as the court may deem best.

History. Laws 1890-91, ch. 70, art. 27, § 2; R.S. 1899, § 4540; C.S. 1910, § 5456; C.S. 1920, § 6728; R.S. 1931, § 88-805; C.S. 1945, § 6-2805; W.S. 1957, § 2-34; W.S. 1977, § 2-2-305 ; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cross references. —

As to schedule of fees, see § 2-2-401 .

Meaning of “Probate Code.” —

The term “Probate Code” refers to the Wyoming Probate Code. See § 2-1-101 .

§ 2-2-404. Payment of court commissioner.

1. The court commissioner, in performing the duties prescribed by the Probate Code, shall receive the following fees in full payment for all services, which shall be taxed as costs against the estate:
   1. For attending any matter, five dollars ($5.00) per day for the time actually employed in hearing the matter;
   2. For each order made by him, three dollars ($3.00);
   3. For all other services he shall receive the same fees which clerks of courts receive for similar services.

History. Laws 1890-91, ch. 70, art. 27, § 3; R.S. 1899, § 4541; C.S. 1910, § 5457; Laws 1919, ch. 23, § 1; C.S. 1920, § 6729; R.S. 1931, § 88-806; C.S. 1945, § 6-2806; W.S. 1957, § 2-35; W.S. 1977, § 2-2-306 ; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cross references. —

As to court commissioners generally, see §§ 5-3-301 to 5-3-312 .

Meaning of “Probate Code.” —

The term “Probate Code” refers to the Wyoming Probate Code. See § 2-1-101 and notes thereto.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Section held inapplicable to certain proceedings. —

This section was held not to fix or control court commissioner's compensation or that of a special master commissioner in taking evidence, making findings and reporting them in a cause or proceeding brought in district court under the Code of Civil Procedure. Weltner v. Thurmond, 17 Wyo. 310, 98 P. 601, 1908 Wyo. LEXIS 19 (1908), rehearing denied, 17 Wyo. 268, 98 P. 590, 99 P. 1128, 1909 Wyo. LEXIS 1 (1909). As to the applicability of the Code of Civil Procedure generally, see § 2-2-308 .

§ 2-3-101. Oath.

Before letters testamentary or of administration are issued, the personal representative shall take and subscribe an oath before some officer authorized to administer oaths, that he will perform according to law the duties of executor or administrator, which oath shall be attached to the letters.

History. Laws 1890-91, ch. 70, art. 8, § 1; R.S. 1899, § 4660; C.S. 1910, § 5527; C.S. 1920, § 6800; R.S. 1931, § 88-2201; C.S. 1945, § 6-1001; W.S. 1957, § 2-121; W.S. 1977, § 2-5-501; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cross references. —

As to officers authorized to administer oaths generally, see § 1-2-102 .

As to oath of special administrators, see § 2-7-304 .

Cited in

Strngari v. Taylor (In re Estate of Novakovich), 2004 WY 158, 101 P.3d 931, 2004 Wyo. LEXIS 203 (2004).

Law reviews. —

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part II,” VIII Land & Water L. Rev. 187 (1973).

§ 2-3-102. Bond required; sureties; form; amount; ascertaining value of property.

Except as provided by W.S. 2-3-111 , every person to whom letters testamentary or of administration are issued shall, before receiving them, execute a bond to the state of Wyoming with two (2) or more sufficient individual sureties or one (1) sufficient corporate surety approved by the district court or the commissioner or clerk. The bond shall be joint and several and the penalty shall not be less than the value of the personal property, and the probable value of the annual rents, profits and issues of real property belonging to the estate. The value shall be ascertained by the district court or the above named officers by examining on oath the party applying and any other person. The sureties shall justify on written oath attached to the bond in an amount equal in the aggregate to the penalty thereof.

History. Laws 1890-91, ch. 70, art. 8, § 2; 1897, ch. 70, § 1; R.S. 1899, § 4661; C.S. 1910, § 5528; C.S. 1920, § 6801; Laws 1927, ch. 22, § 1; R.S. 1931, § 88-2202; C.S. 1945, § 6-1003; W.S. 1957, § 2-122; W.S. 1977, § 2-5-502; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cross references. —

For authority of clerk of district court to approve bonds, see § 2-2-203 .

As to when bonds not required if will so expresses, see § 2-3-111 .

As to bond when executor sole legatee under will, and as to requirements under bond, see § 2-11-301 .

As to justification of sureties, see § 1-1-104 .

As to qualifications of sureties, see § 1-1-105 .

As to limitation of action on official bond or undertaking of an officer, assignee, trustee, executor, administrator or guardian, or upon a bond or undertaking given in pursuance of a statute, see § 1-3-108 .

Liability for claim against testator as surety for officer. —

See Snyder v. State, 5 Wyo. 318, 40 P. 441, 1895 Wyo. LEXIS 25 (Wyo. 1895) (misapplication by officer after testator's death).

Law reviews. —

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part II,” VIII Land & Water L. Rev. 187 (1973).

Am. Jur. 2d, ALR and C.J.S. references. —

When statute of limitations begins to run against action on bond of personal representative, 44 ALR2d 807.

What funds, not part of the estate, are received under color of office so as to render liable surety on executor's or administrator's bond, 82 ALR3d 869.

§ 2-3-103. Letters and bonds to be recorded.

All letters testamentary or of administration issued to, and all bonds executed by personal representatives, with the affidavits and certificates thereon, shall be recorded by the clerk of the court.

History. Laws 1890-91, ch. 70, art. 8, § 1; R.S. 1899, § 4662; C.S. 1910, § 5529; C.S. 1920, § 6802; R.S. 1931, § 88-2203; C.S. 1945, § 6-1002; W.S. 1957, § 2-123; W.S. 1977, § 2-5-503; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

§ 2-3-104. Appointment orders to state qualification time; lapses.

Whenever an order appointing a personal representative is made by any district court or officer having authority to make the appointment, the order shall state the time within which the personal representative shall qualify by giving the bond and taking the oath required by law. Upon failure of any personal representative to qualify within the time fixed, his appointment shall lapse and another appointment shall be made.

History. Laws 1903, ch. 33, § 1; C.S. 1910, § 5531; C.S. 1920, § 6804; R.S. 1931, § 88-2205; C.S. 1945, § 6-1005; W.S. 1957, § 2-124; W.S. 1977, § 2-5-504; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cross references. —

As to when letters of administration may be granted, see § 2-4-208 .

§ 2-3-105. Additional bond required upon sale of real estate; when required.

The district court may require an additional bond whenever the sale of any real estate belonging to the estate is ordered, unless it satisfactorily appears that the penalty of the bond given before receiving letters or any bond given in place thereof is equal to the value of the personal property remaining with or that will come into the possession of the personal representative, including the annual rents, profits and issues of real estate, and the probable amount to be realized on the sale of real estate ordered sold.

History. Laws 1890-91, ch. 70, art. 8, § 3; R.S. 1899, § 4663; C.S. 1910, § 5530; C.S. 1920, § 6803; Laws 1931, ch. 73, § 125; R.S. 1931, § 88-2204; C.S. 1945, § 6-1004; W.S. 1957, § 2-125; W.S. 1977, § 2-5-505; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Am. Jur. 2d, ALR and C.J.S. references. —

Enforceability of contractual right, in which fiduciary has interest, to purchase property of estate or trust, 6 ALR4th 786.

§ 2-3-106. Additional bond required upon sale of real estate; conditions.

The additional bond shall be conditioned that the personal representative shall faithfully execute the duties of the trust according to law, and the sureties shall justify as provided in W.S. 2-3-102 .

History. Laws 1890-91, ch. 70, art. 8, § 4; R.S. 1899, § 4664; C.S. 1910, § 5532; C.S. 1920, § 6805; R.S. 1931, § 88-2206; C.S. 1945, § 6-1006; W.S. 1957, § 2-126; W.S. 1977, § 2-5-506; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

When liability of administrator becomes fixed, that of surety also attaches; and upon failure of principal to pay money an action can be maintained against surety. In such case decree of probate court is conclusive upon status of account as respects sureties as well as administrator. Wayman v. Alanko, 351 P.2d 100, 1960 Wyo. LEXIS 55 (Wyo. 1960).

§ 2-3-107. Separate bond required from each personal representative.

When two (2) or more persons are appointed personal representatives, a separate bond is required from each of them in the same amount as would be required from one.

History. Laws 1890-91, ch. 70, art. 8, § 5; R.S. 1899, § 4665; C.S. 1910, § 5533; C.S. 1920, § 6806; R.S. 1931, § 88-2207; C.S. 1945, § 6-1007; W.S. 1957, § 2-127; W.S. 1977, § 2-5-507; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Failure of executors to file separate bonds is not sufficient ground for removal of the executors where the clerk accepts a joint and several bond signed by a surety company. In re Estate of Hartt, 75 Wyo. 305, 295 P.2d 985, 1956 Wyo. LEXIS 18 (Wyo. 1956).

§ 2-3-108. Several recoveries on same bond allowed.

The bond shall not be void upon the first recovery. It may be used and recovered upon from time to time by any person aggrieved, in his own name, until the whole penalty is exhausted.

History. Laws 1890-91, ch. 70, art. 8, § 6; R.S. 1899, § 466; C.S. 1910, § 5534; C.S. 1920, § 6807; R.S. 1931, § 88-2208; C.S. 1945, § 6-1008; W.S. 1957, § 2-128; W.S. 1977, § 2-5-508; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

§ 2-3-109. Ordering sureties to appear for property value examination; notice to personal representatives; requiring additional security.

Before any bond is approved and after its approval, the officer whose duty it is to approve the same, of his own motion or upon the motion of any person interested in the estate, supported by affidavit that the sureties or one (1) or more of them are not worth as much as they have justified to, may order the sureties to appear before him at a designated time and place to be examined touching their property and its value. The officer shall, at the same time, cause a notice to be issued to the personal representative requiring his appearance at the examination. If, upon examination of the sureties and the witnesses who appear, the officer is satisfied that the bond is insufficient, he shall require additional security.

History. Laws 1890-91, ch. 70, art. 8, § 7; R.S. 1899, § 4667; C.S. 1910, § 5535; C.S. 1920, § 6808; R.S. 1931, § 88-2209; C.S. 1945, § 6-1009; W.S. 1957, § 2-129; W.S. 1977, § 2-5-509; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Law reviews. —

See “The Curative Act and the Probate Code,” 3 Wyo. L.J. 204.

§ 2-3-110. When sufficient security not given in time.

If sufficient security is not given within the time fixed by the order, the right of the personal representative to the administration shall cease, and the person next entitled to the administration of the estate, shall be appointed to the administration upon execution of a sufficient bond.

History. Laws 1890-91, ch. 70, art. 8, § 8; R.S. 1899, § 4668; C.S. 1910, § 5536; C.S. 1920, § 6809; R.S. 1931, § 88-2210; C.S. 1945, § 6-1010; W.S. 1957, § 2-130; W.S. 1977, § 2-5-510; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

§ 2-3-111. When no bond required; generally.

1. When it is expressly provided in the will or by statute that no bond be required of the personal representative or when the distributees waive in writing the requirement that a bond be executed, letters testamentary or of administration may issue without the execution and filing of a bond as provided by W.S. 2-3-102 .
2. When a bond is waived by will, by statute or by the distributees, sales of real estate may be made and confirmed without a bond unless the court for good cause requires one to be executed.
3. If it appears necessary for any reason at any time afterward, the personal representative may be required to file a bond as in other cases.

History. Laws 1890-91, ch. 70, art. 8, § 9; R.S. 1899, § 4669; C.S. 1910, § 5537; C.S. 1920, § 6810; R.S. 1931, § 88-2211; C.S. 1945, § 6-1011; W.S. 1957, § 2-131; W.S. 1977, § 2-5-511; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cross references. —

For requirements as to bond generally, see § 2-3-102 .

As to waiver of bonding requirement where bank named as executor, administrator or trustee of estate, see § 13-2-101(a)(x).

Section not limited by additional bond provisions. —

The fact that a petition may, under § 2-3-113 , be filed to request additional bond does not limit the provisions of this section. In re Estate of Mayne, 345 P.2d 790, 1959 Wyo. LEXIS 54 (Wyo. 1959).

Law reviews. —

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part II,” VIII Land & Water L. Rev. 187 (1973).

§ 2-3-112. When no bond required; suspension of powers upon allegation of waste.

When a petition is presented praying that a personal representative be required to give further security, or to give bond, where by the terms of the will no bond was originally required, and it is alleged on oath that the personal representative is wasting the property of the estate, the judge or commissioner may by order suspend his powers until the matter can be heard and determined.

History. Laws 1890-91, ch. 70, art. 8, § 14; R.S. 1899, § 4674; C.S. 1910, § 5542; C.S. 1920, § 6815; R.S. 1931, § 88-2216; C.S. 1945, § 6-1016; W.S. 1957, § 2-132; W.S. 1977, § 2-5-512; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cross references. —

As to suspension of powers of executor generally upon information of waste or fraud, see §§ 2-3-127 to 2-3-131 .

§ 2-3-113. Requiring further security; petition.

Any person interested in any estate may, by verified petition, represent to the court or commissioner that the sureties of a personal representative have become or are becoming insolvent, or that they have removed or are about to remove from the state, or that from any other cause the bond is insufficient, and ask that further security be required.

History. Laws 1890-91, ch. 70, art. 8, § 10; R.S. 1899, § 4670; C.S. 1910, § 5538; C.S. 1920, § 6811; R.S. 1931, § 88-2212; C.S. 1945, § 6-1012; W.S. 1957, § 2-133; W.S. 1977, § 2-5-513; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Court not restricted to information in petition. —

The legislature clearly intended that the court have authority to require a bond if it appears for any cause that it is necessary or proper, and this intent does not exclude information which has come to the court in a manner other than by a petition of an interested person. In re Estate of Mayne, 345 P.2d 790, 1959 Wyo. LEXIS 54 (Wyo. 1959).

§ 2-3-114. Requiring further security; citation to personal representative; service.

If the court or commissioner is satisfied that the matter requires investigation, a citation shall be issued to the personal representative requiring him to appear at a time and place specified to show cause why he should not give further security. The citation shall be served personally on the personal representative at least five (5) days before the return day. If he has absconded or cannot be found it may be served by leaving a copy of it at his place of residence or by such publication as may be ordered.

History. Laws 1890-91, ch. 70, art. 8, § 11; R.S. 1899, § 4671; C.S. 1910, § 5539; C.S. 1920, § 6812; R.S. 1931, § 88-2213; C.S. 1945, § 6-1013; W.S. 1957, § 2-134; W.S. 1977, § 2-5-514; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Law reviews. —

See “The Curative Act and the Probate Code,” 3 Wyo. L.J. 204.

§ 2-3-115. Requiring further security; hearing; order therefor or new bond.

At the time appointed the court shall hear the proofs and allegations of the parties. If it satisfactorily appears that the security is insufficient, an order may be made requiring the personal representative to give further security, or to file a new bond in the usual form within a reasonable time, not less than five (5) days.

History. Laws 1890-91, ch. 70, art. 8, § 12; R.S. 1899, § 4672; C.S. 1910, § 5540; C.S. 1920, § 6813; R.S. 1931, § 88-2214; C.S. 1945, § 6-1014; W.S. 1957, § 2-135; W.S. 1977, § 2-5-515; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

§ 2-3-116. Requiring further security; failure to comply.

If the personal representative neglects to comply with the order within the time prescribed, the court shall revoke his letters and his authority shall cease.

History. Laws 1890-91, ch. 70, art. 8, § 13; R.S. 1899, § 4673; C.S. 1910, § 5541; C.S. 1920, § 6814; R.S. 1931, § 88-2215; C.S. 1945, § 6-1015; W.S. 1957, § 2-136; W.S. 1977, § 2-5-516; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

§ 2-3-117. Ordering further security without application.

When it comes to his knowledge that the bond of a personal representative is insufficient, the court or commissioner, without any application, shall cause him to be cited to appear and show cause why he should not give further security, and shall proceed as upon the application of any person interested.

History. Laws 1890-91, ch. 70, art. 8, § 15; R.S. 1899, § 4675; C.S. 1910, § 5543; C.S. 1920, § 6816; R.S. 1931, § 88-2217; C.S. 1945, § 6-1017; W.S. 1957, § 2-137; W.S. 1977, § 2-5-517; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Court not restricted to information in petition. —

The legislature clearly intended that the court have authority to require a bond if it appears for any cause that it is necessary or proper, and this intent does not exclude information which has come to the court in a manner other than by a petition of an interested person. In re Estate of Mayne, 345 P.2d 790, 1959 Wyo. LEXIS 54 (Wyo. 1959).

Nor to initial bond. —

Authorization of the court to require that filing of an additional bond on its own motion should not be limited to the initial bond but should apply during the entire period of administration. In re Estate of Mayne, 345 P.2d 790, 1959 Wyo. LEXIS 54 (Wyo. 1959).

Law reviews. —

See “The Curative Act and the Probate Code,” 3 Wyo. L.J. 204.

§ 2-3-118. Relief of sureties; application; citation and service.

When a surety of any personal representative desires to be released from responsibility on account of future acts, he may apply to the court or commissioner for relief. Citation shall be issued to the personal representative and served personally, requiring him to appear at a time and place specified, and to give other security. If he has absconded, left or removed from the state or if he cannot be found after due diligence and inquiry, service may be made as provided in W.S. 2-3-114 .

History. Laws 1890-91, ch. 70, art. 8, § 16; R.S. 1899, § 4676; C.S. 1910, § 5544; C.S. 1920, § 6817; R.S. 1931, § 88-2218; C.S. 1945, § 6-1018; W.S. 1957, § 2-138; W.S. 1977, § 2-5-518; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Law reviews. —

See “The Curative Act and the Probate Code,” 3 Wyo. L.J. 204.

§ 2-3-119. Relief of sureties; release order.

If new sureties are given to the satisfaction of the court or commissioner, he may order that the sureties who applied for relief shall not be liable on their bond for any subsequent act, default or misconduct of the personal representative.

History. Laws 1890-91, ch. 70, art. 8, § 17; R.S. 1899, § 4677; C.S. 1910, § 5545; C.S. 1920, § 6818; R.S. 1931, § 88-2219; C.S. 1945, § 6-1019; W.S. 1957, § 2-139; W.S. 1977, § 2-5-519; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

§ 2-3-120. Relief of sureties; revocation of letters.

If the personal representative neglects or refuses to give new sureties to the satisfaction of the court or commissioner, unless the surety making the application shall consent to a longer extension of time, the court or commissioner shall by order revoke his letters.

History. Laws 1890-91, ch. 70, art. 8, § 18; R.S. 1899, § 4678; C.S. 1910, § 5546; C.S. 1920, § 6819; R.S. 1931, § 88-2220; C.S. 1945, § 6-1020; W.S. 1957, § 2-140; W.S. 1977, § 2-5-520; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

§ 2-3-121. Revoking intestacy administration if will later allowed; generally.

If, after granting letters of administration on the ground of intestacy, a will of the decedent is duly proved and allowed, the letters of administration shall be revoked and the power of the administrator shall cease, and he shall render an account of his administration within the time directed.

History. Laws 1890-91, ch. 70, art. 10, § 1; R.S. 1899, § 4614; C.S. 1910, § 5474; C.S. 1920, § 6747; R.S. 1931, § 88-1001; C.S. 1945, § 6-1201; W.S. 1957, § 2-195; W.S. 1977, § 2-5-1001; Laws § 88-1001; C.S. 1945, § 6-1201; W.S. 1957, § 2-195; 1977, § 2-5-1001; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cross references. —

As to amercement of officers for neglect or failure to perform duty or failure to pay over moneys, etc., see §§ 1-24-101 to 1-24-107 .

As to defaulting fiduciaries, see §§ 2-3-136 to 2-3-138 .

Cited in

Replogle v. Coolidge, 47 Wyo. 488, 41 P.2d 503, 1935 Wyo. LEXIS 4 (1935).

Law reviews. —

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part II,” VIII Land & Water L. Rev. 187 (1973).

§ 2-3-122. Revoking intestacy administration if will later allowed; authority of personal representative.

In such case, the personal representative with the will annexed is entitled to demand, sue for, recover and collect all the rights, goods, chattels, debts and effects of the decedent remaining unadministered. He may prosecute to final judgment any suit commenced by the administrator before the revocation of his letters of administration.

History. Laws 1890-91, ch. 70, art. 10, § 2; R.S. 1899, § 4615; C.S. 1910, § 5475; C.S. 1920, § 6748; R.S. 1931, § 88-1002; C.S. 1945, § 6-1202; W.S. 1957, § 2-196; W.S. 1977, § 2-5-1002; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

§ 2-3-123. Remaining personal representatives to continue if one disqualified.

If any one (1) of several personal representatives to whom letters are granted dies, becomes incompetent, is convicted of an infamous crime or otherwise becomes incapable of executing the trust, or if letters testamentary or of administration are revoked or annulled with respect to any one (1) personal representative, the remaining personal representative shall complete the execution of the will or administration.

History. Laws 1890-91, ch. 70, art. 10, § 3; R.S. 1899, § 4616; C.S. 1910, § 5476; C.S. 1920, § 6749; R.S. 1931, § 88-1101; C.S. 1945, § 6-1203; W.S. 1957, § 2-197; W.S. 1977, § 2-5-1003; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

§ 2-3-124. New appointment to be made if all personal representatives die; bond; authority.

If all personal representatives die or become incapable, or the authority of all of them is revoked, letters testamentary or letters of administration then shall be issued in the same order of preference and manner as provided for the issuance of original letters testamentary or original letters of administration. The personal representative so appointed shall give bond in like penalty, with like sureties and conditions as required of personal representatives, and shall have like authority.

History. Laws 1890-91, ch. 70, art. 10, § 4; R.S. 1899, § 4617; C.S. 1910, § 5477; C.S. 1920, § 6750; R.S. 1931, § 88-1102; C.S. 1945, § 6-1204; W.S. 1957, § 2-198; W.S. 1977, § 2-5-1004; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1; 1981, ch. 151, § 2.

Law reviews. —

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part II,” VIII Land & Water L. Rev. 187 (1973).

§ 2-3-125. Resignation of personal representative; revocation of letters for delay or other cause and new appointment; liability after discharge.

Any personal representative may, by writing filed in the district court, resign his appointment at any time, having first settled his accounts and delivered up all the estate to the person appointed to receive the same. If by reason of any delays in such settlement and delivery of the estate or for any other cause the circumstances of the estate or the rights of those interested therein require it, the court may, before settlement of accounts and delivering up of the estate is completed, revoke the letters of the personal representative, and appoint another personal representative, either special or general, in the same manner as for original letters of administration. The personal representative discharged and released, and the sureties on his bonds are not responsible for any act or liability incurred after his discharge, but shall not be relieved of any liability occurring on his bonds prior to his discharge.

History. Laws 1890-91, ch. 70, art. 10, § 5; R.S. 1899, § 4618; C.S. 1910, § 5478; C.S. 1920, § 6751; R.S. 1931, § 88-1103; C.S. 1945, § 6-1205; W.S. 1957, § 2-199; W.S. 1977, § 2-5-1005; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Revocation of letters of administration was justified where prior litigation between parties had created a hostile, adversarial atmosphere which threatened to interfere with orderly administration of estate. Gonzales v. Yaunick, 977 P.2d 1284, 1999 Wyo. LEXIS 72 (Wyo. 1999).

Law reviews. —

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part II,” 8 Land & Water L. Rev. 187 (1973).

Am. Jur. 2d, ALR and C.J.S. references. —

Dividends as preventing lapse of policy for nonpayment of premiums, 8 ALR3d 862.

Resignation or removal of executor, administrator, guardian or trustee before final administration or before termination of trust, as affecting his compensation, 96 ALR3d 1102.

Delay of executor or administrator in filing inventory, account, or other report, or in completing administration and distribution of estate, as ground for removal, 33 ALR4th 708.

§ 2-3-126. Acts valid until power revoked.

All acts of a personal representative before the revocation of his letters testamentary or of administration are as valid as if the personal representative had continued lawfully to execute the duties of his trust.

History. Laws 1890-91, ch. 70, art. 10, § 6; R.S. 1899, § 4619; C.S. 1910, § 5479; C.S. 1920, § 6752; R.S. 1931, § 88-1104; C.S. 1945, § 6-1206; W.S. 1957, § 2-200; W.S. 1977, § 2-5-1006; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Am. Jur. 2d, ALR and C.J.S. references. —

Enforceability of contractual right, in which fiduciary has interest, to purchase property of estate or trust, 6 ALR4th 786.

§ 2-3-127. Suspension of personal representative's powers for waste; order.

Whenever the court, commissioner or clerk of court has reason to believe from his own knowledge or from credible information that any personal representative has wasted, embezzled or mismanaged, or is about to waste or embezzle the property of the estate committed to his charge, or has committed or is about to commit a fraud upon the estate, is incompetent to act, has permanently removed from the state, has wrongfully neglected the estate, or has long neglected to perform any act as personal representative, he shall by order suspend the powers of the personal representative until the matter is investigated.

History. Laws 1890-91, ch. 70, art. 10, § 9; R.S. 1899, § 4622; C.S. 1910, § 5482; C.S. 1920, § 6755; R.S. 1931, § 88-1301; C.S. 1945, § 6-1209; W.S. 1957, § 2-201; W.S. 1977, § 2-5-1007; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cross references. —

As to suspension of powers upon allegation of waste, see also § 2-3-112 .

Section is clear that whenever a judge has reason to believe, from his own knowledge or from credible information, that the property has been removed from the estate or an estate has been wrongfully neglected, he may suspend the powers and thereupon issue citation to the executor to show why his letters should not be revoked. In re Estate of Mayne, 345 P.2d 790, 1959 Wyo. LEXIS 54 (Wyo. 1959).

Nonresident must permanently “remove” himself to be suspended. —

Where nonresident is appointed as executor, personally submits to jurisdiction of the court and personally conducts settlement of the estate, he cannot be removed from office on ground of his nonresidence unless he subsequently permanently “removes” from the state, in the sense of permanently absenting himself from place where business of his trust is transacted, or withdrawing himself beyond process of the court. Hecht v. Carey, 13 Wyo. 154, 78 P. 705, 1904 Wyo. LEXIS 32 (Wyo. 1904).

Law reviews. —

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part II,” 8 Land & Water L. Rev. 187 (1973).

Am. Jur. 2d, ALR and C.J.S. references. —

Right of appeal from order on application for removal of personal representative, guardian or trustee, 37 ALR2d 751.

Requisites of notice and hearing in court proceedings for removal of personal representative, 47 ALR2d 307.

Compromise of claim due estate as ground of removal of executor or administrator, 72 A.L.R.2d 191.

Physical condition as affecting competency to serve as executor or administrator, 71 ALR3d 675.

§ 2-3-128. Suspension of personal representative's powers for waste; notice to show cause.

When suspension is ordered, the personal representative shall be cited to appear and show cause why his letters should not be revoked. If he fails to appear or if upon appearance the court or officer is satisfied there exists cause for his removal, his letters shall be revoked and letters of administration granted anew as the case may require.

History. Laws 1890-91, ch. 70, art. 10, § 10; R.S. 1899, § 4623; C.S. 1910, § 5483; C.S. 1920, § 6756; R.S. 1931, § 88-1302; C.S. 1945, § 6-1210; W.S. 1957, § 2-202; W.S. 1977, § 2-5-1008; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cited in

Hecht v. Carey, 13 Wyo. 154, 78 P. 705, 1904 Wyo. LEXIS 32 (1904).

Law reviews. —

See “The Curative Act and the Probate Code,” 3 Wyo. L.J. 204.

§ 2-3-129. Suspension of personal representative's powers for waste; hearing and determination.

At the hearing any person interested in the estate or the officer making the charge may appear and file his allegations in writing, showing that the personal representative should be removed. The personal representative may answer. The issue raised shall be heard and determined by the court.

History. Laws 1890-91, ch. 70, art. 10, § 11; R.S. 1899, § 4624; C.S. 1910, § 5484; C.S. 1920, § 6757; R.S. 1931, § 88-1303; C.S. 1945, § 6-1211; W.S. 1957, § 2-203; W.S. 1977, § 2-5-1009; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Response by other beneficiaries not precluded. —

This section does not prohibit a beneficiary of a will from demurring (now moving to dismiss) or answering to a petition by other beneficiaries of the will for removal of executor. In re Estate of Hartt, 75 Wyo. 305, 295 P.2d 985, 1956 Wyo. LEXIS 18 (1956) (decided prior to promulgation of Wyoming Rules of Civil Procedure). See § 2-2-308 .

§ 2-3-130. Suspension of personal representative's powers for waste; notice by publication.

If the personal representative has absconded, conceals himself or has absented himself from the state, notice by publication may be given him of the pendency of the proceedings.

History. Laws 1890-91, ch. 70, art. 10, § 12; R.S. 1899, § 4625; C.S. 1910, § 5485; C.S. 1920, § 6758; R.S. 1931, § 88-1304; C.S. 1945, § 6-1212; W.S. 1957, § 2-204; W.S. 1977, § 2-5-1010; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Law reviews. —

See “The Curative Act and the Probate Code,” 3 Wyo. L.J. 204.

§ 2-3-131. Suspension of personal representative's powers for waste; compelling attendance and answers.

In the proceedings for the removal of a personal representative, the court may compel his attendance by attachment, and may compel him to answer questions on oath touching his administration. Upon his refusal, the court may commit him until he obeys, revoke his letters, or both.

History. Laws 1890-91, ch. 70, art. 10, § 13; R.S. 1899, § 4626; C.S. 1910, § 5486; C.S. 1920, § 6759; R.S. 1931, § 88-1305; C.S. 1945, § 6-1213; W.S. 1957, § 2-205; W.S. 1977, § 2-5-1011; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

§ 2-3-132. Petition for revocation by prior claimant; generally.

When letters of administration are granted to any person other than the surviving husband or wife, child, father, mother, brother or sister of the intestate, any one (1) of them who is competent, or any competent person at the written request of any one (1) of them, may obtain the revocation of the letters and be entitled to administration by presenting to the court a petition so praying.

History. Laws 1890-91, ch. 70, art. 7, § 12; R.S. 1899, § 4653; C.S. 1910, § 5520; C.S. 1920, § 6793; R.S. 1931, § 88-2001; C.S. 1945, § 6-911; W.S. 1957, § 2-206; W.S. 1977, § 2-5-1012; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cross references. —

As to rights and liabilities of married persons generally, see §§ 20-1-201 , 20-1-202 .

Petition must be filed in reasonable time. —

It is essential that, for a petition of revocation to be favorably considered, it must have been made within a reasonable time. In re Estate of Johnson, 379 P.2d 824, 1963 Wyo. LEXIS 78 (Wyo. 1963).

Law reviews. —

See “The Curative Act and the Probate Code,” 3 Wyo. L.J. 204.

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part II,” VIII Land & Water L. Rev. 187 (1973).

§ 2-3-133. Petition for revocation by prior claimant; citation to personal representative.

When such petition is filed, the clerk shall issue a citation to the personal representative to appear and answer at the time appointed for the hearing.

History. Laws 1890-91, ch. 70, art. 7, § 13; R.S. 1899, § 4654; C.S. 1910, § 5521; C.S. 1920, § 6794; R.S. 1931, § 88-2002; C.S. 1945, § 6-912; W.S. 1957, § 2-207; W.S. 1977, § 2-5-1013; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Law reviews. —

See “The Curative Act and the Probate Code,” 3 Wyo. L.J. 204.

Am. Jur. 2d, ALR and C.J.S. references. —

Requisites of notice and hearing in court proceedings for removal of personal representative, 47 ALR2d 307.

§ 2-3-134. Petition for revocation by prior claimant; hearing and disposition.

At the time appointed, the citation having been duly served and returned, the court shall proceed to hear the allegations and proofs of the parties. If the right of the applicant is established and he is competent, letters of administration shall be granted to him and the letters of the former personal representative revoked.

History. Laws 1890-91, ch. 70, art. 7, § 14; R.S. 1899, § 4655; C.S. 1910, § 5522; C.S. 1920, § 6795; R.S. 1931, § 88-2003; C.S. 1945, § 6-913; W.S. 1957, § 2-208; W.S. 1977, § 2-5-1014; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Am. Jur. 2d, ALR and C.J.S. references. —

Requisites of notice and hearing in court proceedings for removal of personal representative, 47 ALR2d 307.

§ 2-3-135. Petition for revocation by prior claimant; prior right of surviving spouse.

When letters of administration have been granted to a child, father, brother or sister of the intestate, the surviving spouse may assert his or her prior right and obtain letters of administration and have the letters before granted revoked.

History. Laws 1890-91, ch. 70, art. 7, § 15; R.S. 1899, § 4656; C.S. 1910, § 5523; C.S. 1920, § 6796; R.S. 1931, § 88-2004; C.S. 1945, § 6-914; W.S. 1957, § 2-209; W.S. 1977, § 2-5-1015; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

§ 2-3-136. Hearing upon affidavit of interested person; authority to order.

When it appears by the affidavit of any person interested in the estate that any personal representative, guardian, receiver, assignee or trustee has failed to render his accounts in the manner prescribed by law or as required by the order of the court, or has removed from the state, the court may order a hearing as hereinafter prescribed.

History. Laws 1899, ch. 73, § 1; R.S. 1899, § 4558; Laws 1901, ch. 107, § 1; C.S. 1910, § 5487; C.S. 1920, § 6760; R.S. 1931, § 88-1401; C.S. 1945, § 6-2201; W.S. 1957, § 4-33; W.S. 1977, § 4-7-101 ; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cited in

Hibsman v. Mullen (In re Estate of Hibsman), 2012 WY 139, 2012 Wyo. LEXIS 144 (Oct 31, 2012).

Cross references. —

As to examination of persons suspected of embezzling estate property, see § 2-7-412 .

As to examination of persons suspected of defrauding wards or concealing property, see § 3-1-104 .

Law reviews. —

See “The Curative Act and the Probate Code,” 3 Wyo. L.J. 204.

§ 2-3-137. Hearing upon affidavit of interested person; citation and service thereof.

The court shall make an order fixing the time and place of the hearing. The clerk shall issue citation to be served upon the officer charged as delinquent and upon the heirs, ward, cestui que trust or bondsmen. The citation shall be served by the sheriff upon the person or persons to be served, or by registered mail if personal service cannot be made in the county. The citation shall notify the persons served of the time and place of the hearing.

History. Laws 1899, ch. 73, § 2; R.S. 1899, § 4559; Laws 1901, ch. 107, § 2; C.S. 1910, § 5488; C.S. 1920, § 6761; R.S. 1931, § 88-1402; C.S. 1945, § 6-2202; W.S. 1957, § 4-34; W.S. 1977, § 4-7-102; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

§ 2-3-138. Hearing upon affidavit of interested person; proceedings and disposition.

At the hearing the court shall proceed in a summary way to ascertain the facts and the course best calculated to protect the interests of all parties. Upon finding of default or removal from the state, the court may remove the personal representative, guardian, receiver, assignee or trustee and appoint another qualified person to administer the estate, who shall qualify according to law.

History. Laws 1899, ch. 73, § 3; R.S. 1899, § 4560; C.S. 1910, § 5489; C.S. 1920, § 6762; R.S. 1931, § 88-1403; C.S. 1945, § 6-2203; W.S. 1957, § 4-35; W.S. 1977, § 4-7-103; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

§ 2-3-201. Short title.

W.S. 2-3-201 through 2-3-211 may be cited as the “Uniform Fiduciaries Act”.

History. Laws 1929, ch. 90, § 14; R.S. 1931, § 43-114; C.S. 1945, § 8-114; W.S. 1957, § 4-1; W.S. 1977, § 4-1-101 ; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Meaning of “this act.” —

For definition of the term “this act” as meaning §§ 2-3-201 to 2-3-211 , see § 2-3-202(a)(vi).

§ 2-3-202. Definitions.

1. In this act unless the context or subject matter otherwise requires:
   1. “Bank” includes any person or association of persons, whether incorporated or not, carrying on the business of banking;
   2. “Fiduciary” includes a trustee under any trust, expressed, implied, resulting or constructive, personal representative, guardian, conservator, curator, receiver, trustee in bankruptcy, assignee for the benefit of creditors, partner, agent, officer of a corporation, public or private, public officer or any other person acting in a fiduciary capacity for any person, trust or estate;
   3. “Person” includes a corporation, partnership or other association or two (2) or more persons having a joint or common interest;
   4. “Principal” includes any person to whom a fiduciary as such owes an obligation;
   5. A thing is done “in good faith” within the meaning of this act, when it is in fact done honestly, whether it be done negligently or not;
   6. As used in the Uniform Fiduciaries Act, “this act” means W.S. 2-3-201 through 2-3-211 .

History. Laws 1929, ch. 90, § 1; R.S. 1931, § 43-101; C.S. 1945, § 8-101; W.S. 1957, § 4-2; W.S. 1977, § 4-1-102; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Meaning of “this act.” —

For short title provision stating that §§ 2-3-201 to 2-3-211 may be cited as the Uniform Fiduciaries Act, see § 2-3-201 .

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Term “person” includes a corporation such as a bank. Board of County Comm'rs v. First Nat'l Bank, 368 P.2d 132, 1962 Wyo. LEXIS 64 (Wyo. 1962).

For discussion of authorities defining “in good faith.” —

See Board of County Comm'rs v. First Nat'l Bank, 368 P.2d 132, 1962 Wyo. LEXIS 64 (Wyo. 1962).

Quoted in

State v. Faulkner, 75 Wyo. 104, 292 P.2d 1045, 1956 Wyo. LEXIS 3 (1956).

§ 2-3-203. Responsibility and rights of persons dealing with fiduciaries.

A person who in good faith pays or transfers to a fiduciary any money or other property which the fiduciary as such is authorized to receive is not responsible for the proper application thereof by the fiduciary; and any right or title acquired from the fiduciary in consideration of the payment or transfer is not invalid in consequence of a misapplication by the fiduciary.

History. Laws 1929, ch. 90, § 2; R.S. 1931, § 43-102; C.S. 1945, § 8-102; W.S. 1957, § 4-3; W.S. 1977, § 4-1-103; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Term “person” includes a corporation such as a bank. Board of County Comm'rs v. First Nat'l Bank, 368 P.2d 132, 1962 Wyo. LEXIS 64 (Wyo. 1962).

Person paying in good faith not liable for fiduciary's defalcation. —

If a person or corporation pays, in good faith, money to a fiduciary which the fiduciary is entitled to receive, the paying party is not responsible for defalcation on the part of the fiduciary. Board of County Comm'rs v. First Nat'l Bank, 368 P.2d 132, 1962 Wyo. LEXIS 64 (Wyo. 1962).

Nor for negligence in discovering misappropriation. —

That a man dealing with a fiduciary cannot, in the absence of bad faith, be held responsible for mere neglect in discovering and preventing misappropriation by the fiduciary is supported by ample authority. Board of County Comm'rs v. First Nat'l Bank, 368 P.2d 132, 1962 Wyo. LEXIS 64 (Wyo. 1962).

Applied in

Chorney v. Chorney, 383 P.2d 859, 1963 Wyo. LEXIS 98 (Wyo. 1963).

§ 2-3-204. Liability of bank; payment of checks signed by fiduciary.

If a deposit is made in a bank to the credit of a fiduciary as such, the bank is authorized to pay the amount of the deposit or any part thereof upon the check of the fiduciary, signed with the name in which such deposit is entered, without being liable to the principal, unless the bank pays the check with actual knowledge that the fiduciary is committing a breach of his obligation as fiduciary in drawing the check or with knowledge that its action in paying the check amounts to bad faith. If a check is payable to the drawee bank and is delivered to it in payment of or as security for a personal debt of the fiduciary to it, the bank is liable to the principal if the fiduciary in fact commits a breach of his obligation as fiduciary in drawing or delivering the check.

History. Laws 1929, ch. 90, § 7; R.S. 1931, § 43-107; C.S. 1945, § 8-107; W.S. 1957, § 4-8; W.S. 1977, § 4-1-104; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Law reviews. —

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part II,” VIII Land & Water L. Rev. 187 (1973).

§ 2-3-205. Liability of bank; when check drawn on principal by fiduciary.

If a check is drawn upon the account of his principal in a bank by a fiduciary who is empowered to draw checks upon his principal’s account, the bank is authorized to pay the check without being liable to the principal, unless the bank pays the check with actual knowledge that the fiduciary is committing a breach of his obligation as fiduciary in drawing the check, or with knowledge that its action in paying the check amounts to bad faith. If a check is payable to the drawee bank and is delivered to it in payment of or as security for a personal debt of the fiduciary to it, the bank is liable to the principal if the fiduciary in fact commits a breach of his obligation as fiduciary in drawing or delivering the check.

History. Laws 1929, ch. 90, § 8; R.S. 1931, § 43-108; C.S. 1945, § 8-108; W.S. 1957, § 4-9; W.S. 1977, § 4-1-105; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

§ 2-3-206. Liability of bank; receiving deposit from fiduciary.

If a fiduciary makes a deposit in a bank to his personal credit of checks drawn by him upon an account in his own name as fiduciary, or of checks payable to him as fiduciary, or of checks drawn by him upon an account in the name of his principal if he is empowered to draw checks thereon, or of checks payable to his principal and endorsed by him, if he is empowered to endorse the checks, or if he otherwise makes a deposit of funds held by him as fiduciary, the bank receiving the deposit is not bound to inquire whether the fiduciary is committing thereby a breach of his obligation as fiduciary; and the bank is authorized to pay the amount of the deposit or any part thereof upon the personal check of the fiduciary without being liable to the principal, unless the bank receives the deposit or pays the check with actual knowledge that the fiduciary is committing a breach of his obligation as fiduciary in making the deposit or in drawing the check, or with knowledge that its action in receiving the deposit or paying the check amounts to bad faith.

History. Laws 1929, ch. 90, § 9; R.S. 1931, § 43-109; C.S. 1945, § 8-109; W.S. 1957, § 4-10; W.S. 1977, § 4-1-106; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cross references. —

As to trust deposits, see § 2-1-203 .

Section based on public policy. —

The rule limiting liability of banks dealing with fiduciaries is, to a more or less, extent based upon public policy. Board of County Comm'rs v. First Nat'l Bank, 368 P.2d 132, 1962 Wyo. LEXIS 64 (Wyo. 1962).

Not liable for fiduciary's defalcation if payment made in good faith. —

If a person or corporation pays, in good faith, money to a fiduciary which the fiduciary is entitled to receive, the paying party is not responsible for defalcation on the part of the fiduciary. Board of County Comm'rs v. First Nat'l Bank, 368 P.2d 132, 1962 Wyo. LEXIS 64 (Wyo. 1962).

§ 2-3-207. Liability of bank; when check drawn by trustee.

When a deposit is made in a bank in the name of two (2) or more persons as trustees and a check is drawn upon the trust account by any trustee or trustees authorized by the other trustee or trustees to draw checks upon the trust account, neither the payee nor other holder nor the bank is bound to inquire whether it is a breach of trust to authorize the trustee or trustees to draw checks upon the trust account, and is not liable unless the circumstances are such that the action of the payee or other holder or the bank amounts to bad faith.

History. Laws 1929, ch. 90, § 10; R.S. 1931, § 43-110; C.S. 1945, § 8-110; W.S. 1957, § 4-11; W.S. 1977, § 4-1-107; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

§ 2-3-208. Succession of fiduciary powers when bank consolidates with another.

In the event of the merger or the consolidation of any bank, banking association, loan and trust company, named as personal representative, trustee under trust agreement, guardian of minors or incompetents, trustee for bond issue, escrow agent, holder of real estate titles, receiver or agent, the successor of the bank, banking association, or loan and trust company, shall by virtue of the merger, consolidation or succession, succeed to all the fiduciary powers, privileges, benefits, obligations, duties and liabilities of its predecessor, and shall carry out all the duties and obligations imposed upon its predecessor as the personal representative, trustee under trust agreement, guardian of minors or incompetents, trustee for bond issue, escrow agent, holder of real estate titles, receiver or agent, as if it had been originally named in the instrument or instruments creating the fiduciary relation.

History. Laws 1931, ch. 91, § 1; R.S. 1931, § 43-115; C.S. 1945, § 8-115; W.S. 1957, § 4-12; W.S. 1977, § 4-1-108; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Repealing clauses. —

Section 2, ch. 91, Laws 1931, repealed all laws and parts of laws in conflict therewith.

§ 2-3-209. Applicability; generally.

The provisions of this act shall not apply to transactions taking place prior to the time when it takes effect.

History. Laws 1929, ch. 90, § 11; R.S. 1931, § 43-111; C.S. 1945, § 8-111; W.S. 1957, § 4-13; W.S. 1977, § 4-1-109; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Meaning of “this act.” —

For the meaning of the term “this act,” see § 2-3-201 and notes thereto.

§ 2-3-210. Applicability; rules of law and equity.

In any case not provided for in this act, the rules of law and equity, including the law merchant and those rules of law and equity relating to trusts, agency, negotiable instruments and banking, shall continue to apply.

History. Laws 1929, ch. 90, § 12; R.S. 1931, § 43-112; C.S. 1945, § 8-112; W.S. 1957, § 4-14; W.S. 1977, § 4-1-110; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Meaning of “this act.” —

For the meaning of the term “this act,” see § 2-3-201 .

Cited in

Kerper v. Kerper, 780 P.2d 923, 1989 Wyo. LEXIS 253 (Wyo. 1989); Shriners Hosps. for Children v. First Northern Bank of Wyo., 2016 WY 51, 373 P.3d 392, 2016 Wyo. LEXIS 55 (Wyo. 2016).

§ 2-3-211. Interpretation and construction.

This act shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.

History. Laws 1929, ch. 90, § 13; R.S. 1931, § 43-113; C.S. 1945, § 8-113; W.S. 1957, § 4-15; W.S. 1977, § 4-1-111; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Meaning of “this act.” —

For the meaning of the term “this act,” see § 2-3-201

Cited in

Board of County Comm'rs v. First Nat'l Bank, 368 P.2d 132, 1962 Wyo. LEXIS 64 (Wyo. 1962).

§ 2-3-301. Standard for fiduciaries; authority to acquire and retain property and investments.

1. In acquiring, investing, reinvesting, exchanging, retaining, selling and managing property for the benefit of another, a fiduciary shall exercise the judgment and care of a prudent investor as specified under W.S. 4-10-901 through 4-10-913 .
2. Within the limitations of the foregoing standard, a fiduciary may:
   1. Acquire and retain every kind of property, real, personal or mixed, and every kind of investment, specifically including bonds, debentures and other corporate obligations, and stocks, preferred or common, which persons of prudence, discretion and intelligence acquire or retain for their own account;
   2. Retain property properly acquired, without limitation as to time and without regard to its suitability for original purchase.
3. Any bank as defined by W.S. 13-1-101 or any trust company formed under W.S. 13-5-102 , that is acting as a fiduciary or agent may, in its discretion or at the direction of another person who is authorized to direct the investment of money held by the bank or trust company, invest in the securities of an open end or closed end management investment company or investment trust that is registered under the federal Investment Company Act of 1940, as amended. The bank or trust company, or any affiliate thereof, may provide services to the investment trust or investment company, including acting as an investment advisor, manager, sponsor, distributor, custodian, transfer agent or registrar, and may receive reasonable compensation for the services. Provided, however, that with respect to any funds invested, the bank or trust company or its affiliate shall disclose to the persons to whom statements of the account are rendered consistent with the requirements of W.S. 4-10-802(f).

History. Laws 1967, ch. 36, § 1; W.S. 1977, § 4-3-101 ; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1; 1995, ch. 85, § 1; 1998, ch. 114, § 2; 1999, ch. 105, § 2; 2003, ch. 124, § 2; 2005, ch. 126, § 2.

Cross references. —

As to investing in bonds and other securities issued by University of Wyoming, see § 21-17-448 .

As to investment in community college bonds, see § 21-18-313 .

The 2005 amendment in (c), substituted “consistent with the requirements of W.S. 4-10-802(f)” for “the rate, formula or other method by which the compensation paid is determined.”

Laws 2005, ch. 126, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 25, 2005.

Investment Company Act of 1940. —

The Investment Company Act of 1940, referred to in subsection (b), is codified as 15 U.S.C. §§ 80a-1 through 80a-64.

Law reviews. —

For comment, “Wyoming's Uniform Trustee's Powers Act: A Help to the Knowledgeable Draftsman, A Trap for the Unwary,” see XIV Land & Water L. Rev. 533 (1979).

For comment, “Personal Liability for Directors of Nonprofit Corporations in Wyoming,” see XVIII Land & Water L. Rev. 273 (1983).

§ 2-3-302. Departures from express terms of wills not authorized; “legal investment” or “authorized investment” construed.

Nothing contained in W.S. 2-3-301 through 2-3-305 shall be construed as authorizing any departure from, or variation of, the express terms or limitations set forth in any will, agreement, court order or other instrument creating or defining the fiduciary’s duties and powers, but the terms “legal investment” or “authorized investment” or words of similar import, as used in any instrument, shall be taken to mean any investment which is permitted by the terms of W.S. 2-3-301 .

History. Laws 1967, ch. 36, § 2; W.S. 1977, § 4-3-102; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

§ 2-3-303. Authority of court to allow deviation from terms.

Nothing contained in this act shall be construed as restricting the power of a court of proper jurisdiction to permit a fiduciary to deviate from the terms of any will, agreement or other instrument relating to the acquisition, investment, reinvestment, exchange, retention, sale or management of fiduciary property.

History. Laws 1967, ch. 36, § 3; W.S. 1977, § 4-3-103; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Meaning of “this act.” —

The term “this act” appears to mean §§ 2-3-301 to 2-3-305 .

Am. Jur. 2d, ALR and C.J.S. references. —

Propriety of sale of trust assets without consent despite trust provision requiring consent, 39 ALR4th 158.

§ 2-3-304. Applicability; generally.

The provisions of this act shall govern fiduciaries acting under wills, agreements, court orders and other instruments now existing or hereafter made.

History. Laws 1967, ch. 36, § 4; W.S. 1977, § 4-3-104; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Meaning of “this act.” —

The term “this act” appears to mean §§ 2-3-301 to 2-3-305 .

§ 2-3-305. Applicability; state funds excepted.

Nothing contained in this act shall apply to any funds belonging to the state of Wyoming.

History. Laws 1967, ch. 36, § 5; W.S. 1977, § 4-3-105; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cross references. —

For authority to invest in specified federal notes and bonds, see § 9-4-831 .

Meaning of “this act.” —

The term “this act” appears to mean §§ 2-3-301 to 2-3-305 .

§ 2-3-401. Short title.

W.S. 2-3-401 through 2-3-403 may be cited as the “Uniform Common Trust Fund Act”.

History. Laws 1955, ch. 17, § 3; W.S. 1957, § 4-20; W.S. 1977, § 4-4-101 ; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

§ 2-3-402. Authority to establish; purpose.

1. Any bank or trust company qualified to act as fiduciary in this state may establish and administer common trust funds composed of property permitted by law for investment in trust funds for the purpose of furnishing investments to:
   1. Itself as fiduciary;
   2. Itself and others as cofiduciaries;
   3. Any affiliated bank or trust company including any foreign affiliated bank or trust company as fiduciary;
   4. Any affiliated bank or trust company including any foreign affiliated bank or trust company and others as cofiduciaries; or
   5. Any combination of the entities listed in paragraphs (i) through (iv) of this subsection.
2. Any bank or trust company may as fiduciary or cofiduciary invest funds which it lawfully holds for investment in interests in common trust funds administered by itself or by any affiliated bank or trust company, if such investment is not prohibited by the instrument, judgment, decree, order, or statute creating or governing the fiduciary relationship, and if, in the case of a cofiduciary, the bank or trust company procures the consent of its cofiduciary in such investment.

History. Laws 1955, ch. 17, § 1; W.S. 1957, § 4-21; W.S. 1977, § 4-4-102; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1; 1989, ch 56, § 2.

§ 2-3-403. Accounting.

Unless ordered by a court of competent jurisdiction, the bank or trust company operating common trust funds is not required to render a court accounting with regard to these funds, but it may by application to the court secure approval of an accounting on such conditions as the court may establish.

History. Laws 1955, ch. 17, § 2; W.S. 1957, § 4-22; W.S. 1977, § 4-4-103; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

§ 2-3-404. Common trust fund distinct from participating fiduciaries.

1. Each common trust fund established hereunder is a separate and distinct entity from the fiduciaries participating in the fund. No fiduciary in administering its and other fiduciaries participation in a common trust fund may be required to make any apportionment or allocation between the principal and income of the fund between the participating fiduciaries different from that made for the common trust fund.
2. No fiduciary participating in a common trust fund, or person having an interest in property invested in the common trust fund, may have or be considered to have any ownership in any particular property of the common trust fund. Each participating fiduciary shall have a proportionate undivided interest in the fund and its income. The ownership of all property of the common trust fund shall be in the trustee of the fund.

History. Laws 1989, ch. 56, § 1.

§ 2-3-405. “Affiliated” defined.

For purposes of this article, two (2) or more banks or trust companies are affiliated if they are members of the same affiliated group, within the meaning of section 1504 of the United States Internal Revenue Code [26 U.S.C. § 1504].

History. Laws 1989, ch. 56, § 1.

§ 2-3-406. Exemption.

The establishment and maintenance of common trust funds under this article are exempt from the provisions of title 17, chapter 4.

History. Laws 1989, ch. 56, § 1.

§ 2-3-501. Authorization by court; generally.

Whenever in any estate or guardianship now being administered or that may hereafter be administered, it appears to the court to be for the advantage of the estate or ward to raise money upon a note or notes secured by a mortgage of the real or personal property of any decedent or ward or to make a lease of such real property, or it appears to the court that the homestead of a minor or incompetent is mortgaged and the mortgage thereon is subject to foreclosure, and the guardian does not have sufficient money in the estate of the person to pay the mortgage, the court may as often as occasion therefor shall arise in the administration of the estate or guardianship, on petition, notice and hearing as provided in this article, authorize and direct the executor, administrator or guardian to mortgage the personal or real property, including release and waiver of homestead of the ward, and to execute a note or notes secured by the mortgage, or to lease the real estate, or any part thereof.

History. Laws 1919, ch. 24, § 1; C.S. 1920, § 6967; R.S. 1931, § 88-3401; Laws 1935, ch. 125, § 1; 1937, ch. 34, § 1; C.S. 1945, § 8-201; W.S. 1957, § 4-23; W.S. 1977, § 4-5-101 ; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Am. Jur. 2d, ALR and C.J.S. references. —

Waiver by parties or participants of irregularities or defects in judicial sale by trustee, 2 A.L.R.2d 6.

Necessity of consent of court to tax sale of property in custody of trustee appointed by court, 3 ALR2d 893.

Right of trustee other than person named in will as such to execute power of sale conferred by will, 9 ALR2d 1324.

Misstatement in trustee's or mortgagee's report as to amount for which property has been sold under power of sale as ground for avoiding sale, 22 ALR2d 979.

Implied power of testamentary trustee to sell real property, 23 ALR2d 1000.

Trustee's power to employ broker or agent to sell estate property, 47 ALR2d 1379.

Power of trustee and court as regards term of lease of trust property, 67 ALR2d 978.

Rights and remedies of one purchasing at trustee's sale where there was a misrepresentation or mistake as to acreage or boundaries of tract sold, 69 ALR2d 254.

Power of trustee with power to sell or to lease real property, or to do both, to give an option to purchase, 83 ALR2d 1310.

Broker's fees on sale or lease of trust property as chargeable against principal or interest, 94 ALR2d 1306.

Validity and construction of trust provision authorizing trustee to purchase trust property, 39 ALR3d 836.

§ 2-3-502. Authorization by court; contents of petition; hearing; objections; terms, etc., of order.

1. A petition to mortgage or lease under W.S. 2-3-501 , or a petition to transfer, sell or assign royalty, overriding royalty, leasehold or other mineral interest, or to lease the mineral interest in the property under W.S. 2-3-503 , shall show:
   1. The advantage that may accrue to the estate from the lease, mortgage, transfer, sale or assignment;
   2. A general description of the property to be leased, mortgaged, sold or assigned;
   3. The term, rental and general conditions of the proposed lease, transfer, sale or assignment, or the amount, maturity and rate of interest of the proposed mortgage;
   4. The names of the legatees and devisees, if any, and of the heirs of the deceased, or of the minor or incompetent person, lessee, assignee or purchaser, so far as known to the petitioner.
2. Upon the filing of the petition, the court, if it deems the petition sufficient, shall set the matter for hearing and shall direct to what persons and in what manner notice of the hearing shall be given. At the hearing any person interested in the estate may appear and present objections to the proposed lease, mortgage, sale or assignment. If objections are filed to the petition, the court may adjourn the hearing to enable the parties objecting to fully present their reasons and evidence for and against the proposed lease, mortgage, sale or assignment. If no objections are filed, or if upon hearing the objections are deemed insufficient, the court may order the lease, mortgage, transfer, sale or assignment of royalty, overriding royalty, lease or other mineral interest, or lease of the mineral interest in the property, upon the terms, in the amount and for the period as is deemed proper by the court.

History. Laws 1919, ch. 24, §§ 2, 3; C.S. 1920, §§ 6968, 6969; Laws 1931, ch. 73, § 139; R.S. 1931, § 88-3402; C.S. 1945, § 8-202; Laws 1955, ch. 25, § 1; W.S. 1957, § 4-24; W.S. 1977, § 4-5-102; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

§ 2-3-503. Authorization by court; transfer of mineral interests; terms.

Proceedings may be had in the district court of each Wyoming county in which an estate in probate is being administered or a guardianship proceeding is pending, which involves real property, for authority to transfer, sell or assign royalty, overriding royalty, leasehold or other mineral interest and to lease the mineral content ownership interest in the property of any then deceased person or of any then minor or incompetent person, as distinguished from realty surface leases referred to in W.S. 2-3-501 . If it appears to the court that the transfer, sale or assignment of royalty, overriding royalty, leasehold or other mineral interest or execution and delivery of a lease or contract for exploration and development of the affected real property mineral interest of the decedent, minor or incompetent person, will be advantageous to the estate of the decedent, minor or incompetent person the court, may authorize and direct the trustee, executor or administrator of the probate estate or the guardian of the estate of the minor or incompetent person, to transfer, sell or assign the royalty, overriding royalty, leasehold or other mineral interest or to lease the real estate interest or any part thereof for the mineral content purposes stated. Leases may be for primary terms of five (5) years or less as mutually agreed by the parties thereto and for so long thereafter as the mineral content, including but not restricted to oil, gas or other hydrocarbons, shall or can be produced in commercial quantities from the leasehold premises, or for the term of each unit or cooperative agreement to which the lease may be committed with the consent and approval of the court. The lease is not invalid or voidable because its effectiveness may or will extend beyond the term in office of the lessor, trustee, executor, administrator or guardian, or beyond the time of final settlement of the probate estate, or beyond the minority of the minor or the period of incompetency of the incompetent involved. With the consent and approval of the court any royalty, overriding royalty or other mineral interest or a lease may be committed to a unit or cooperative agreement, or to a secondary recovery agreement, for a like term and with like effect.

History. Laws 1951, ch. 17, § 1; 1955, ch. 25, § 2; 1957, ch. 97, § 1; W.S. 1957, § 4-25; W.S. 1977, § 4-5-103; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Am. Jur. 2d, ALR and C.J.S. references. —

Oil and gas: Rights of royalty owners to take-or-pay settlements, 57 ALR5th 753.

§ 2-3-504. Authorization by court; transfer of mineral interests; prior leases validated.

All proceedings of the type herein authorized, which have been heretofore concluded in any court aforesaid, substantially consistent with the procedure herein authorized, and all unexpired leases of the kind specified, previously executed and delivered pursuant to each prior proceeding, substantially in conformity with the provisions hereof, are hereby declared valid, as effectively as if this act had been in force upon the date of each prior proceeding and lease.

History. Laws 1951, ch. 17, § 2; W.S. 1957, § 4-26; W.S. 1977, § 4-5-104; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Meaning of “this act.” —

The term “this act” seems to refer to provisions originally enacted by ch. 17, Laws 1951, which presently appear as §§ 2-3-503 and 2-3-504 .

Severability. —

Section 3, ch. 17, Laws 1951, provides “Should any part or portion of this act be adjudged invalid, the remaining portion or portions of the same shall remain in full force and effect notwithstanding such invalidity.”

§§ 2-3-601 through 2-3-614. [Repealed.]

Repealed by Laws 2001, ch. 11, § 2.

Cross references. —

For present similar provisions, see article 8 of this chapter.

Editor's notes. —

This article, which derived from Laws 1963, ch. 189, §§ 1-14, related to the determination, allocation and distribution of principal and income of trusts.

§§ 2-3-701 through 2-3-711. [Repealed.]

Repealed by Laws 1996, ch. 65, § 4.

Editor's notes. —

These sections, which derived from Laws 1959, ch. 170, §§ 1 through 11, related to security transfers. For present similar provisions, see § 34.1-8-301 et seq.

§ 2-3-801. Short title.

This act shall be known and may be cited as the “Wyoming Uniform Principal and Income Act”.

History. Laws 2001, ch. 11, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 2-3-802(a)(xiv).

§ 2-3-802. Definitions.

1. As used in this act:
   1. “Accounting period” means a calendar year unless another twelve-month period is selected by a fiduciary. The term includes a portion of a calendar year or other twelve-month period that begins when an income interest begins or ends when an income interest ends;
   2. “Beneficiary” includes, in the case of a decedent’s estate, an heir, legatee and devisee and, in the case of a trust, an income beneficiary and a remainder beneficiary;
   3. “Fiduciary” means a personal representative or a trustee. The term includes an executor, administrator, successor personal representative, special administrator and a person performing substantially the same function;
   4. “Income” means money or property that a fiduciary receives as current return from a principal asset. The term includes a portion of receipts from a sale, exchange or liquidation of a principal asset, to the extent provided in W.S. 2-3-811 through 2-3-825 ;
   5. “Income beneficiary” means a person to whom net income of a trust is or may be payable;
   6. “Income interest” means the right of an income beneficiary to receive all or part of net income, whether the terms of the trust require it to be distributed or authorize it to be distributed in the trustee’s discretion;
   7. “Mandatory income interest” means the right of an income beneficiary to receive net income that the terms of the trust require the fiduciary to distribute;
   8. “Net income” means the total receipts allocated to income during an accounting period minus the disbursements made from income during the period, plus or minus transfers under this act to or from income during the period;
   9. “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture; government, governmental subdivision, agency or instrumentality; public corporation; or any other legal or commercial entity;
   10. “Principal” means property held in trust for distribution to a remainder beneficiary when the trust terminates;
   11. “Remainder beneficiary” means a person entitled to receive principal when an income interest ends;
   12. “Terms of a trust” means the manifestation of the intent of a settlor or decedent with respect to the trust, expressed in a manner that admits of its proof in a judicial proceeding, whether by written or spoken words or by conduct;
   13. “Trustee” includes an original, additional or successor trustee, whether or not appointed or confirmed by a court;
   14. “This act” means W.S. 2-3-801 through 2-3-834 .

History. Laws 2001, ch. 11, § 1; 2008, ch. 116, § 1.

The 2008 amendment, made a stylistic change.

Laws 2008, ch. 116, § 5, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 13, 2008.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 2-3-803. Fiduciary duties; general principles.

1. In allocating receipts and disbursements to or between principal and income, and with respect to any matter within the scope of W.S. 2-3-806 through 2-3-810 , a fiduciary:
   1. Shall administer a trust or estate in accordance with the terms of the trust or the will, even if there is a different provision in this act;
   2. May administer a trust or estate by the exercise of a discretionary power of administration given to the fiduciary by the terms of the trust or the will, even if the exercise of the power produces a result different from a result required or permitted by this act, and no inference that the fiduciary has improperly exercised the discretion arises from the fact that the fiduciary has made an allocation contrary to a provision of this act;
   3. Shall administer a trust or estate in accordance with this act if the terms of the trust or the will do not contain a different provision or do not give the fiduciary a discretionary power of administration; and
   4. Shall add a receipt or charge a disbursement to principal to the extent that the terms of the trust and this act do not provide a rule for allocating the receipt or disbursement to or between principal and income.
2. In exercising the power to adjust under W.S. 2-3-804(a) or a discretionary power of administration regarding a matter within the scope of this act, whether granted by the terms of a trust, a will, or this act, a fiduciary shall administer a trust or estate impartially, based on what is fair and reasonable to all of the beneficiaries, except to the extent that the terms of the trust or the will clearly manifest an intention that the fiduciary shall or may favor one (1) or more of the beneficiaries. A determination in accordance with this act is presumed to be fair and reasonable to all of the beneficiaries.

History. Laws 2001, ch. 11, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 2-3-802(a)(xiv).

§ 2-3-804. Trustee's power to adjust; liability of trustee.

1. Subject to subsections (b) and (c) of this section, a trustee may adjust between principal and income to the extent the trustee considers necessary if the trustee invests and manages trust assets as a prudent investor, the terms of the trust describe the amount that may or must be distributed to a beneficiary by referring to the trust’s income, and the trustee determines, after applying the rules in W.S. 2-3-803(a), and considering any power the trustee may have under the trust to invade principal or accumulate income, that the trustee is unable to comply with W.S. 2-3-803(b).
2. In deciding whether and to what extent to exercise the power conferred by subsection (a) of this section, a trustee shall consider all factors relevant to the trust and its beneficiaries, including the following factors to the extent they are relevant:
   1. The nature, purpose and expected duration of the trust;
   2. The intent of the settlor;
   3. The identity and circumstances of the beneficiaries;
   4. The needs for liquidity, regularity of income and preservation and appreciation of capital;
   5. The assets held in the trust; the extent to which they consist of financial assets, interests in closely held enterprises, tangible and intangible personal property, or real property; the extent to which an asset is used by a beneficiary; and whether an asset was purchased by the trustee or received from the settlor;
   6. The net amount allocated to income under the other sections of this act and the increase or decrease in the value of the principal assets, which the trustee may estimate as to assets for which market values are not readily available;
   7. Whether and to what extent the terms of the trust give the trustee the power to invade principal or accumulate income or prohibit the trustee from invading principal or accumulating income, and the extent to which the trustee has exercised a power from time to time to invade principal or accumulate income;
   8. The actual and anticipated effect of economic conditions on principal and income and effects of inflation and deflation; and
   9. The anticipated tax consequences of an adjustment.
3. A trustee may not make an adjustment:
   1. That diminishes the income interest in a trust that requires all of the income to be paid at least annually to a spouse and for which an estate tax or gift tax marital deduction would be allowed, in whole or in part, if the trustee did not have the power to make the adjustment;
   2. That reduces the actuarial value of the income interest in a trust to which a person transfers property with the intent to qualify for a gift tax exclusion;
   3. That changes the amount payable to a beneficiary as a fixed annuity or a fixed fraction of the value of the trust assets;
   4. From any amount that is permanently set aside for charitable purposes under a will or the terms of a trust unless both income and principal are so set aside;
   5. If possessing or exercising the power to make an adjustment causes an individual to be treated as the owner of all or part of the trust for income tax purposes, and the individual would not be treated as the owner if the trustee did not possess the power to make an adjustment;
   6. If possessing or exercising the power to make an adjustment causes all or part of the trust assets to be included for estate tax purposes in the estate of an individual who has the power to remove a trustee or appoint a trustee, or both, and the assets would not be included in the estate of the individual if the trustee did not possess the power to make an adjustment;
   7. If the trustee is a beneficiary of the trust; or
   8. If the trustee is not a beneficiary, but the adjustment would benefit the trustee directly or indirectly.
4. If paragraph (c)(v), (vi), (vii) or (viii) of this section applies to a trustee and there is more than one (1) trustee, a cotrustee to whom the provision does not apply may make the adjustment unless the exercise of the power by the remaining trustee or trustees is not permitted by the terms of the trust.
5. A trustee may release the entire power conferred by subsection (a) of this section or may release only the power to adjust from income to principal or the power to adjust from principal to income if the trustee is uncertain about whether possessing or exercising the power will cause a result described in paragraphs (c)(i) through (vi) or (viii) of this section or if the trustee determines that possessing or exercising the power will or may deprive the trust of a tax benefit or impose a tax burden not described in subsection (c) of this section. The release may be permanent or for a specified period, including a period measured by the life of an individual.
6. Terms of a trust that limit the power of a trustee to make an adjustment between principal and income do not affect the application of this section unless it is clear from the terms of the trust that the terms are intended to deny the trustee the power of adjustment conferred by subsection (a) of this section.
7. Nothing in this section or in this act is intended to create or imply a duty to make an adjustment, and a trustee is not liable for not considering whether to make an adjustment or for choosing not to make an adjustment.
8. If a trustee elects to exercise the power to adjust under this statute, the trustee may, on an annual basis, include net realized capital gains in determining trust income and section 643(a) of the Internal Revenue Code distributable net income, if the allocation is reasonable and impartial.

History. Laws 2001, ch. 11, § 1; 2015, ch. 79, § 2.

The 2015 amendment, effective July 1, 2015, added (h).

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 2-3-802(a)(xiv).

§ 2-3-805. Notice of proposed action; objections of beneficiary; liability of trustee; proceedings.

1. Unless a trust instrument requires otherwise, a trustee may give notice of proposed action regarding a matter governed by this act as provided in this section. For the purpose of this section, a proposed action includes a course of action and a decision not to take action.
2. If a trustee elects to give notice under this section, the trustee shall mail notice of the proposed action to all beneficiaries who are receiving, or are entitled to receive, income under the trust or to receive a distribution of principal if the trust were terminated at the time the notice is given.
3. Notice of proposed action need not be given to any person who consents in writing to the proposed action. The consent may be executed at any time before or after the proposed action is taken.
4. The notice of proposed action shall state that it is given pursuant to this section and shall state all of the following:
   1. The name and mailing address of the trustee;
   2. The name and telephone number of a person who may be contacted for additional information;
   3. A description of the action proposed to be taken and an explanation of the reasons for the action;
   4. The time within which objections to the proposed action can be made, which shall be at least thirty (30) days from the mailing of the notice of proposed action; and
   5. The date on or after which the proposed action may be taken or is effective.
5. A beneficiary may object to the proposed action by mailing a written objection to the trustee at the address stated in the notice of proposed action within the time period specified in the notice of proposed action.
6. Except for good cause shown, a trustee is not liable to a beneficiary for an action regarding a matter governed by this act if the trustee does not receive a written objection to the proposed action from the beneficiary within the applicable period and the other requirements of this section are satisfied. If no beneficiary entitled to notice objects under this section, the trustee is not liable to any current or future beneficiary with respect to the proposed action.
7. If the trustee receives a written objection within the applicable period, either the trustee or a beneficiary may petition the court to have the proposed action taken as proposed, taken with modifications, or denied. In the proceeding, a beneficiary objecting to the proposed action has the burden of proving that the trustee’s proposed action should not be taken. A beneficiary who has not objected is not estopped from opposing the proposed action in the proceeding. If the trustee decides not to implement the proposed action, the trustee shall notify the beneficiaries of the decision not to take the action and the reasons for the decision, and the trustee’s decision not to implement the proposed action does not itself give rise to liability to any current or future beneficiary. A beneficiary may petition the court to have the action taken, and has the burden of proving that it should be taken.

History. Laws 2001, ch. 11, § 1; 2005, ch. 126, § 2.

The 2005 amendment added the conditions at the beginning of (a) and (b); and also in (a) substituted “may” for “shall.”

Laws 2005, ch. 126, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 25, 2005.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 2-3-802(a)(xiv).

Am. Jur. 2d, ALR and C.J.S. references. —

Propriety of sale of trust assets without consent despite trust provision requiring consent, 39 ALR4th 158.

§ 2-3-806. Determination and distribution of net income.

1. After a decedent dies, in the case of an estate, or after an income interest in a trust ends, the following rules apply:
   1. A fiduciary of an estate or of a terminating income interest shall determine the amount of net income and net principal receipts received from property specifically given to a beneficiary under the rules in W.S. 2-3-808 through 2-3-831 which apply to trustees and the rules in paragraph (v) of this subsection. The fiduciary shall distribute the net income and net principal receipts to the beneficiary who is to receive the specific property;
   2. A fiduciary shall determine the remaining net income of a decedent’s estate or a terminating income interest under the rules in W.S. 2-3-808 through 2-3-831 which apply to trustees and by:
      1. Including in net income all income from property used to discharge liabilities;
      2. Paying from income or principal, in the fiduciary’s discretion, fees of attorneys, accountants and fiduciaries; court costs and other expenses of administration; and interest on death taxes, but the fiduciary may pay those expenses from income of property passing to a trust for which the fiduciary claims an estate tax marital or charitable deduction only to the extent that the payment of those expenses from income will not cause the reduction or loss of the deduction; and
      3. Paying from principal all other disbursements made or incurred in connection with the settlement of a decedent’s estate or the winding up of a terminating income interest, including debts, funeral expenses, disposition of remains, family allowances and death taxes and related penalties that are apportioned to the estate or terminating income interest by the will, the terms of the trust or applicable law.
   3. A fiduciary shall distribute to a beneficiary who receives a pecuniary amount outright the interest or any other amount provided by the will, the terms of the trust, or applicable law from net income determined under paragraph (ii) of this subsection or from principal to the extent that net income is insufficient. If a beneficiary is to receive a pecuniary amount outright from a trust after an income interest ends and no interest or other amount is provided for by the terms of the trust or applicable law, the fiduciary shall distribute the interest or other amount to which the beneficiary would be entitled under applicable law if the pecuniary amount were required to be paid under a will;
   4. A fiduciary shall distribute the net income remaining after distributions required by paragraph (iii) of this subsection in the manner described in W.S. 2-3-807 to all other beneficiaries, including a beneficiary who receives a pecuniary amount in trust, even if the beneficiary holds an unqualified power to withdraw assets from the trust or other presently exercisable general power of appointment over the trust;
   5. A fiduciary may not reduce principal or income receipts from property described in paragraph (i) of this subsection because of a payment described in W.S. 2-3-826 or 2-3-827 to the extent that the will, the terms of the trust, or applicable law requires the fiduciary to make the payment from assets other than the property or to the extent that the fiduciary recovers or expects to recover the payment from a third party. The net income and principal receipts from the property are determined by including all of the amounts the fiduciary receives or pays with respect to the property, whether those amounts accrued or became due before, on, or after the date of a decedent’s death or an income interest’s terminating event, and by making a reasonable provision for amounts that the fiduciary believes the estate or terminating income interest may become obligated to pay after the property is distributed.

History. Laws 2001, ch. 11, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

The following annotations were taken from cases derived under former article 6 of this chapter.

General pecuniary legatee may have his bequest satisfied from principal, because it is property which is a separate asset of the estate. In re Estate of Deutsch, 644 P.2d 768, 1982 Wyo. LEXIS 334 (Wyo. 1982).

Royalty payments from musical compositions are wasting assets. Payments received from wasting assets partake of the nature of principal and income and must be apportioned between principal and income. In re Estate of Deutsch, 644 P.2d 768, 1982 Wyo. LEXIS 334 (Wyo. 1982).

Specific bequest carries accrued accretions. —

In the absence of a provision to the contrary in a will, a specific bequest of an installment contract also carries accretions accrued after the testator's death. Where there is no contrary provision in the will, the interest after death as attributable to the contract payments is part of the specific bequest for estate distribution. In re Estate of Newell, 765 P.2d 1353, 1988 Wyo. LEXIS 174 (Wyo. 1988).

Law reviews. —

For comment, “Wyoming's Uniform Trustee's Powers Act: A Help to the Knowledgeable Draftsman, A Trap for the Unwary,” see XIV Land & Water L. Rev. 533 (1979).

Am. Jur. 2d, ALR and C.J.S. references. —

Claims for expenses of last sickness or for funeral expenses as within contemplation of statute requiring presentation of claims against decedent's estate, or limiting time for bringing action thereon, 17 ALR4th 530.

Award of attorneys' fees out of trust estate in action by trustee against cotrustee, 24 ALR4th 624.

Excessiveness or adequacy of attorneys' fees in matters involving real estate—modern cases, 10 ALR5th 448.

§ 2-3-807. Distribution to residuary and remainder beneficiaries.

1. Each beneficiary described in W.S. 2-3-806(a)(iv) is entitled to receive a portion of the net income equal to the beneficiary’s fractional interest in undistributed principal assets, using values as of the distribution date. If a fiduciary makes more than one (1) distribution of assets to beneficiaries to whom this section applies, each beneficiary, including one who does not receive part of the distribution, is entitled, as of each distribution date, to the net income the fiduciary has received after the date of death or terminating event or earlier distribution date but has not distributed as of the current distribution date.
2. In determining a beneficiary’s share of net income, the following rules apply:
   1. The beneficiary is entitled to receive a portion of the net income equal to the beneficiary’s fractional interest in the undistributed principal assets immediately before the distribution date, including assets that later may be sold to meet principal obligations;
   2. The beneficiary’s fractional interest in the undistributed principal assets must be calculated without regard to property specifically given to a beneficiary and property required to pay pecuniary amounts not in trust;
   3. The beneficiary’s fractional interest in the undistributed principal assets must be calculated on the basis of the aggregate value of those assets as of the distribution date without reducing the value by any unpaid principal obligation; and
   4. The distribution date for purposes of this section may be the date as of which the fiduciary calculates the value of the assets if that date is reasonably near the date on which assets are actually distributed.
3. If a fiduciary does not distribute all of the collected but undistributed net income to each person as of a distribution date, the fiduciary shall maintain appropriate records showing the interest of each beneficiary in that net income.
4. A fiduciary may apply the rules in this section, to the extent that the fiduciary considers it appropriate, to net gain or loss realized after the date of death or terminating event or earlier distribution date from the disposition of a principal asset if this section applies to the income from the asset.

History. Laws 2001, ch. 11, § 1.

§ 2-3-808. When right to income begins and ends.

1. An income beneficiary is entitled to net income from the date on which the income interest begins. An income interest begins on the date specified in the terms of the trust or, if no date is specified, on the date an asset becomes subject to a trust or successive income interest.
2. An asset becomes subject to a trust:
   1. On the date it is transferred to the trust in the case of an asset that is transferred to a trust during the transferor’s life;
   2. On the date of a testator’s death in the case of an asset that becomes subject to a trust by reason of a will, even if there is an intervening period of administration of the testator’s estate; or
   3. On the date of an individual’s death in the case of an asset that is transferred to a fiduciary by a third party because of the individual’s death.
3. An asset becomes subject to a successive income interest on the day after the preceding income interest ends, as determined under subsection (d) of this section, even if there is an intervening period of administration to wind up the preceding income interest.
4. An income interest ends on the day before an income beneficiary dies or another terminating event occurs, or on the last day of a period during which there is no beneficiary to whom a trustee may distribute income.

History. Laws 2001, ch. 11, § 1.

§ 2-3-809. Apportionment of receipts and disbursements when decedent dies or income interest begins.

1. A trustee shall allocate an income receipt or disbursement other than one to which W.S. 2-3-806(a)(i) applies to principal if its due date occurs before a decedent dies in the case of an estate or before an income interest begins in the case of a trust or successive income interest.
2. A trustee shall allocate an income receipt or disbursement to income if its due date occurs on or after the date on which a decedent dies or an income interest begins and it is a periodic due date. An income receipt or disbursement must be treated as accruing from day to day if its due date is not periodic or it has no due date. The portion of the receipt or disbursement accruing before the date on which a decedent dies or an income interest begins must be allocated to principal and the balance must be allocated to income.
3. An item of income or an obligation is due on the date the payer is required to make a payment. If a payment date is not stated, there is no due date for the purposes of this act. Distributions to shareholders or other owners from an entity to which W.S. 2-3-810 applies are deemed to be due on the date fixed by the entity for determining who is entitled to receive the distribution or, if no date is fixed, on the declaration date for the distribution. A due date is periodic for receipts or disbursements that must be paid at regular intervals under a lease or an obligation to pay interest or if an entity customarily makes distributions at regular intervals.

History. Laws 2001, ch. 11, § 1.

§ 2-3-810. Apportionment when income interest ends.

1. In this section, “undistributed income” means net income received before the date on which an income interest ends. The term does not include an item of income or expense that is due or accrued or net income that has been added or is required to be added to principal under the terms of the trust.
2. When a mandatory income interest ends, the trustee shall pay to a mandatory income beneficiary who survives that date, or the estate of a deceased mandatory income beneficiary whose death causes the interest to end, the beneficiary’s share of the undistributed income that is not disposed of under the terms of the trust unless the beneficiary has an unqualified power to revoke more than five percent (5%) of the trust immediately before the income interest ends. In the latter case, the undistributed income from the portion of the trust that may be revoked must be added to principal.
3. When a trustee’s obligation to pay a fixed annuity or a fixed fraction of the value of the trust’s assets ends, the trustee shall prorate the final payment if and to the extent required by applicable law to accomplish a purpose of the trust or its settlor relating to income, gift, estate or other tax requirements.

History. Laws 2001, ch. 11, § 1.

§ 2-3-811. Character of receipts.

1. In this section, “entity” means a corporation, partnership, limited liability company, regulated investment company, real estate investment trust, common trust fund or any other organization in which a trustee has an interest other than a trust or estate to which W.S. 2-3-811 applies, a business or activity to which W.S. 2-3-813 applies or an asset-backed security to which W.S. 2-3-825 applies.
2. Except as otherwise provided in this section, a trustee shall allocate to income money received from an entity.
3. A trustee shall allocate the following receipts from an entity to principal:
   1. Property other than money;
   2. Money received in one (1) distribution or a series of related distributions in exchange for part or all of a trust’s interest in the entity;
   3. Money received in total or partial liquidation of the entity; and
   4. Money received from an entity that is a regulated investment company or a real estate investment trust if the money distributed is a capital gain dividend for federal income tax purposes.
4. Money is received in partial liquidation:
   1. To the extent that the entity, at or near the time of a distribution, indicates that it is a distribution in partial liquidation; or
   2. If the total amount of money and property received in a distribution or series of related distributions is greater than twenty percent (20%) of the entity’s gross assets, as shown by the entity’s year-end financial statements immediately preceding the initial receipt.
5. Money is not received in partial liquidation, nor may it be taken into account under paragraph (d)(ii) of this section, to the extent that it does not exceed the amount of income tax that a trustee or beneficiary must pay on taxable income of the entity that distributes the money.
6. A trustee may rely upon a statement made by an entity about the source or character of a distribution if the statement is made at or near the time of distribution by the entity’s board of directors or other person or group of persons authorized to exercise powers to pay money or transfer property comparable to those of a corporation’s board of directors.

History. Laws 2001, ch. 11, § 1.

§ 2-3-812. Distribution from trust or estate.

A trustee shall allocate to income an amount received as a distribution of income from a trust or an estate in which the trust has an interest other than a purchased interest, and shall allocate to principal an amount received as a distribution of principal from such a trust or estate. If a trustee purchases an interest in a trust that is an investment entity, or a decedent or donor transfers an interest in such a trust to a trustee, W.S. 2-3-811 or 2-3-825 applies to a receipt from the trust.

History. Laws 2001, ch. 11, § 1.

§ 2-3-813. Business and other activities conducted by trustee.

1. If a trustee who conducts a business or other activity determines that it is in the best interest of all the beneficiaries to account separately for the business or activity instead of accounting for it as part of the trust’s general accounting records, the trustee may maintain separate accounting records for its transactions, whether or not its assets are segregated from other trust assets.
2. A trustee who accounts separately for a business or other activity may determine the extent to which its net cash receipts must be retained for working capital, the acquisition or replacement of fixed assets, and other reasonably foreseeable needs of the business or activity, and the extent to which the remaining net cash receipts are accounted for as principal or income in the trust’s general accounting records. If a trustee sells assets of the business or other activity, other than in the ordinary course of the business or activity, the trustee shall account for the net amount received as principal in the trust’s general accounting records to the extent the trustee determines that the amount received is no longer required in the conduct of the business.
3. Activities for which a trustee may maintain separate accounting records include:
   1. Retail, manufacturing, service and other traditional business activities;
   2. Farming;
   3. Raising and selling livestock and other animals;
   4. Management of rental properties;
   5. Extraction of minerals and other natural resources;
   6. Timber operations; and
   7. Activities to which W.S. 2-3-824 applies.

History. Laws 2001, ch. 11, § 1.

§ 2-3-814. Principal receipts.

1. A trustee shall allocate to principal:
   1. To the extent not allocated to income under this act, assets received from a transferor during the transferor’s lifetime, a decedent’s estate, a trust with a terminating income interest or a payer under a contract naming the trust or its trustee as beneficiary;
   2. Money or other property received from the sale, exchange, liquidation or change in form of a principal asset, including realized profit, subject to W.S. 2-3-811 through 2-3-825 ;
   3. Amounts recovered from third parties to reimburse the trust because of disbursements described in W.S. 2-3-827(a)(vii) or for other reasons to the extent not based on the loss of income;
   4. Proceeds of property taken by eminent domain, but a separate award made for the loss of income with respect to an accounting period during which a current income beneficiary had a mandatory income interest is income;
   5. Net income received in an accounting period during which there is no beneficiary to whom a trustee may or must distribute income; and
   6. Other receipts as provided in W.S. 2-3-818 through 2-3-825 .

History. Laws 2001, ch. 11, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 2-3-802(a)(xiv).

§ 2-3-815. Rental property.

To the extent that a trustee accounts for receipts from rental property pursuant to this section, the trustee shall allocate to income an amount received as rent of real or personal property, including an amount received for cancellation or renewal of a lease. An amount received as a refundable deposit, including a security deposit or a deposit that is to be applied as rent for future periods, must be added to principal and held subject to the terms of the lease and is not available for distribution to a beneficiary until the trustee’s contractual obligations have been satisfied with respect to that amount.

History. Laws 2001, ch. 11, § 1.

§ 2-3-816. Obligation to pay money.

1. An amount received as interest, whether determined at a fixed, variable or floating rate, on an obligation to pay money to the trustee, including an amount received as consideration for prepaying principal, must be allocated to income without any provision for amortization of premium.
2. A trustee shall allocate to principal an amount received from the sale, redemption or other disposition of an obligation to pay money to the trustee more than one (1) year after it is purchased or acquired by the trustee, including an obligation the purchase price or value of which when it is acquired is less than its value at maturity. If the obligation matures within one (1) year after it is purchased or acquired by the trustee, an amount received in excess of its purchase price or its value when acquired by the trust must be allocated to income.
3. This section does not apply to obligations to which W.S. 2-3-819 through 2-3-822 , 2-3-824 or 2-3-825 applies.

History. Laws 2001, ch. 11, § 1.

§ 2-3-817. Insurance policies and similar contracts.

1. Except as otherwise provided in subsection (b) of this section, a trustee shall allocate to principal the proceeds of a life insurance policy or other contract in which the trust or its trustee is named as beneficiary, including a contract that insures the trust or its trustee against loss for damage to, destruction of or loss of title to a trust asset. The trustee shall allocate dividends on an insurance policy to income if the premiums on the policy are paid from income, and to principal if the premiums are paid from principal.
2. A trustee shall allocate to income proceeds of a contract that insures the trustee against loss of occupancy or other use by an income beneficiary, loss of income, or, subject to W.S. 2-3-813 , loss of profits from a business.
3. This section does not apply to a contract to which W.S. 2-3-819 applies.

History. Laws 2001, ch. 11, § 1.

§ 2-3-818. Insubstantial allocation not required.

1. If a trustee determines that an allocation between principal and income required by W.S. 2-3-819 through 2-3-822 or 2-3-825 is insubstantial, the trustee may allocate the entire amount to principal unless one of the circumstances described in W.S. 2-3-804(c) applies to the allocation. This power may be exercised by a cotrustee in the circumstances described in W.S. 2-3-804(d) and may be released for the reasons and in the manner described in W.S. 2-3-804(e). An allocation is presumed to be insubstantial if:
   1. The amount of the allocation would increase or decrease net income in an accounting period, as determined before the allocation, by less than ten percent (10%); or
   2. The value of the asset producing the receipt for which the allocation would be made is less than ten percent (10%) of the total value of the trust’s assets at the beginning of the accounting period.

History. Laws 2001, ch. 11, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 2-3-819. Deferred compensation, annuities and similar payments.

1. As used in this section:
   1. “Payment” means a payment that a trustee may receive over a fixed number of years or during the life of one (1) or more individuals because of services rendered or property transferred to the payer in exchange for future payments. The term includes a payment made in money or property from the payer’s general assets or from a separate fund created by the payer. For the purposes of subsections (d) through (g) of this section, the term also includes any payment from any separate fund, regardless of the reason for the payment;
   2. “Separate fund” includes a private or commercial annuity, an individual retirement account, and a pension, profit-sharing, stock-bonus or stock-ownership plan.
2. To the extent that a payment is characterized by the separate fund as interest, a dividend or a payment made in lieu of interest or a dividend, a trustee shall allocate it to income. The trustee shall allocate to principal the balance of the payment and any other payment received in the same accounting period that is not characterized as interest, a dividend or an equivalent payment.
3. If no part of a payment is characterized by the separate fund as interest, a dividend or an equivalent payment, and all or part of the payment is required to be made, a trustee shall allocate to income ten percent (10%) of the part that is required to be made during the accounting period and the balance to principal. If no part of a payment is required to be made or the payment received is the entire amount to which the trustee is entitled, the trustee shall allocate the entire payment to principal. For purposes of this subsection, a payment is not “required to be made” to the extent that it is made because the trustee exercises a right of withdrawal.
4. Except as otherwise provided in subsection (e) of this section, subsections (f) and (g) of this section shall apply, and subsection (b) and (c) of this section shall not apply in determining the allocation of a payment made from a separate fund to:
   1. A trust to which an election to qualify for a marital deduction under section 2056(b)(7) of the Internal Revenue Code has been made;
   2. A trust that qualifies for the marital deduction under section 2056(b)(5) of the Internal Revenue Code; or
   3. A trust which requires payment of all trust income to the trust beneficiaries during the accounting period.
5. Paragraph (d)(i) and subsections (f) and (g) of this section shall not apply if, and to the extent that, the series of payments would, without the application of paragraph (d)(i) of this section, qualify for the marital deduction under section 2056(b)(7)(C) of the Internal Revenue Code.
6. A trustee shall determine the internal income of each separate fund for the accounting period as if the separate fund were a separate trust fund subject to this act. Upon request of the surviving spouse or other trust beneficiaries with the right to all the trust income, the trustee shall demand that the person administering the separate fund distribute the internal income to the trust. The trustee shall allocate a payment from the separate fund to income to the extent of the internal income of the separate fund and distribute that amount to or for the benefit of the surviving spouse or other trust beneficiaries with the right to all the trust income. The trustee shall allocate the balance of the payment to the principal. Upon request of the surviving spouse or other trust beneficiaries with the right to all the trust income, the trustee shall allocate principal to income to the extent the internal income of the separate fund exceeds payments made from the separate fund to the trust during the accounting period.
7. If a trustee cannot determine the internal income of a separate fund but can determine the value of the separate fund, the internal income of the separate fund is deemed to equal three percent (3%) of the fund’s value, according to the most recent statement of value preceding the beginning of the accounting period. If the trustee can determine neither the internal income of the separate fund nor the fund’s value, the internal income of the fund is deemed to equal the product of the interest rate and the present value of the expected future payments, as determined under section 7520 of the Internal Revenue Code for the month preceding the accounting period for which the computation is made.
8. This section does not apply to payments to which W.S. 2-3-820 applies.

History. Laws 2001, ch. 11, § 1; 2009, ch. 71, § 1.

Cross references. —

Sections 2056(b) and 7520 of the Internal Revenue Code, referred to in this section, are codified at 26 U.S.C.S. §§ 2056(b) and 7520, respectively.

The 2009 amendment, rewrote (a), inserted “by the separate fund” following “characterized” in the first sentence of (b) and (c), rewrote (d), added (e)-(g), and redesignated (e) as (h).

Laws 2009, ch. 71, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by Article 4, Section 8 of the Wyoming Constitution

Am. Jur. 2d, ALR and C.J.S. references. —

Modern status of rules governing allocation of stock dividends or splits between principal and income, 81 ALR3d 876.

§ 2-3-820. Liquidating asset.

1. In this section, “liquidating asset” means an asset whose value will diminish or terminate because the asset is expected to produce receipts for a period of limited duration. The term includes a leasehold, patent, copyright, royalty right and right to receive payments during a period of more than one (1) year under an arrangement that does not provide for the payment of interest on the unpaid balance. The term does not include a payment subject to W.S. 2-3-819 , resources subject to W.S. 2-3-821 , timber subject to W.S. 2-3-822 , an activity subject to W.S. 2-3-824 , an asset subject to W.S. 2-3-825 or any asset for which the trustee establishes a reserve for depreciation under W.S. 2-3-828 .
2. A trustee shall allocate to income ten percent (10%) of the receipts from a liquidating asset and the balance to principal.

History. Laws 2001, ch. 11, § 1.

§ 2-3-821. Minerals, water and other natural resources.

1. To the extent that a trustee accounts for receipts from an interest in minerals or other natural resources pursuant to this section, the trustee shall allocate them as follows:
   1. If received as nominal delay rental or nominal annual rent on a lease, a receipt must be allocated to income;
   2. If received from a production payment, a receipt must be allocated to income if and to the extent that the agreement creating the production payment provides a factor for interest or its equivalent. The balance must be allocated to principal;
   3. If an amount received as a royalty, shut-in-well payment, take-or-pay payment, bonus or delay rental is more than nominal, twenty-seven and one-half percent (27.5%) must be allocated to principal and the balance to income;
   4. If an amount is received from a working interest or any other interest not provided for in paragraph (i), (ii) or (iii) of this subsection, twenty-seven and one-half percent (27.5%) of the net amount received must be allocated to principal and the balance to income.
2. An amount received on account of an interest in water that is renewable must be allocated to income. If the water is not renewable, twenty-seven and one-half percent (27.5%) of the amount must be allocated to principal and the balance to income.
3. This act applies whether or not a decedent or donor was extracting minerals, water or other natural resources before the interest became subject to the trust.
4. If a trust owns an interest in minerals, water or other natural resources on the effective date of this act, the trustee may allocate receipts from the interest as provided in this act or in the manner used by the trustee before the effective date of this act. If the trust acquires an interest in minerals, water or other natural resources after the effective date of this act, the trustee shall allocate receipts as provided in this act.

History. Laws 2001, ch. 11, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 2-3-802(a)(xiv).

§ 2-3-822. Timber.

1. To the extent that a trustee accounts for receipts from the sale of timber and related products pursuant to this section, the trustee shall allocate the net receipts:
   1. To income to the extent that the amount of timber removed from the land does not exceed the estimated rate of growth of the timber during the accounting periods in which a beneficiary has a mandatory income interest;
   2. To principal to the extent that the amount of timber removed from the land exceeds the estimated rate of growth of the timber or the net receipts are from the sale of standing timber;
   3. To or between income and principal if the net receipts are from the lease of timberland or from a contract to cut timber from land owned by a trust, by determining the amount of timber removed from the land under the lease or contract and applying the rules in paragraphs (i) and (ii) of this subsection; or
   4. To principal to the extent that advance payments, bonuses and other payments are not allocated pursuant to paragraph (i), (ii) or (iii) of this subsection.
2. In determining net receipts to be allocated pursuant to subsection (a) of this section, a trustee shall deduct and transfer to principal a reasonable amount for depletion.
3. This act applies whether or not a decedent or transferor was harvesting timber from the property before it became subject to the trust.
4. If a trust owns an interest in timberland on the effective date of this act, the trustee may allocate net receipts from the sale of timber and related products as provided in this act or in the manner used by the trustee before the effective date of this act. If the trust acquires an interest in timberland after the effective date of this act, the trustee shall allocate net receipts from the sale of timber and related products as provided in this act.

History. Laws 2001, ch. 11, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 2-3-802(a)(xiv).

Library references. —

18 Nat. Resources & Env't Law Review 18.

§ 2-3-823. Property not productive of income.

1. If a marital deduction is allowed for all or part of a trust whose assets consist substantially of property that does not provide the spouse with sufficient income from or use of the trust assets, and if the amounts that the trustee transfers from principal to income under W.S. 2-3-804 and distributes to the spouse from principal pursuant to the terms of the trust are insufficient to provide the spouse with the beneficial enjoyment required to obtain the marital deduction, the spouse may require the trustee to make property productive of income, convert property within a reasonable time or exercise the power conferred by W.S. 2-3-804 (a). The trustee may decide which action or combination of actions to take.
2. In cases not governed by subsection (a) of this section, proceeds from the sale or other disposition of an asset are principal without regard to the amount of income the asset produces during any accounting period.

History. Laws 2001, ch. 11, § 1.

§ 2-3-824. Derivatives and options.

1. In this section, “derivative” means a contract or financial instrument or a combination of contracts and financial instruments which gives a trust the right or obligation to participate in some or all changes in the price of a tangible or intangible asset or group of assets, or changes in a rate, an index of prices or rates or other market indicator for an asset or a group of assets.
2. To the extent that a trustee does not account under W.S. 2-3-813 for transactions in derivatives, the trustee shall allocate to principal receipts from and disbursements made in connection with those transactions.
3. If a trustee grants an option to buy property from the trust, whether or not the trust owns the property when the option is granted, grants an option that permits another person to sell property to the trust, or acquires an option to buy property for the trust or an option to sell an asset owned by the trust, and the trustee or other owner of the asset is required to deliver the asset if the option is exercised, an amount received for granting the option must be allocated to principal. An amount paid to acquire the option must be paid from principal. A gain or loss realized upon the exercise of an option, including an option granted to a settlor of the trust for services rendered, must be allocated to principal.

History. Laws 2001, ch. 11, § 1.

§ 2-3-825. Asset-backed securities.

1. In this section, “asset-backed security” means an asset whose value is based upon the right it gives the owner to receive distributions from the proceeds of financial assets that provide collateral for the security. The term includes an asset that gives the owner the right to receive from the collateral financial assets only the interest or other current return or only the proceeds other than interest or current return. The term does not include an asset to which W.S. 2-3-811 or 2-3-819 applies.
2. If a trust receives a payment from interest or other current return and from other proceeds of the collateral financial assets, the trustee shall allocate to income the portion of the payment which the payer identifies as being from interest or other current return and shall allocate the balance of the payment to principal.
3. If a trust receives one (1) or more payments in exchange for the trust’s entire interest in an asset-backed security in one (1) accounting period, the trustee shall allocate the payments to principal. If a payment is one (1) of a series of payments that will result in the liquidation of the trust’s interest in the security over more than one (1) accounting period, the trustee shall allocate ten percent (10%) of the payment to income and the balance to principal.

History. Laws 2001, ch. 11, § 1.

§ 2-3-826. Disbursements from income.

1. A trustee shall make the following disbursements from income to the extent that they are not disbursements to which W.S. 2-3-806(a)(ii)(B) or (C) applies:
   1. Interest, except interest on taxes as provided in W.S. 2-3-827(a)(vi);
   2. Ordinary repairs and maintenance of real estate;
   3. Real estate taxes and other regularly recurring taxes assessed against principal; and
   4. Recurring premiums on insurance covering the loss of a principal asset or the loss of income from or use of the asset.

History. Laws 2001, ch. 11, § 1; 2015, ch. 79, § 2.

The 2015 amendment, effective July 1, 2015, rewrote (a)(i) through (a)(iii), redefining payments from income to include certain interest, taxes, and maintenance costs.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 2-3-827. Disbursements from principal.

1. A trustee shall make the following disbursements from principal:
   1. Extraordinary expenses incurred in connection with the administration, management or preservation of trust property and the distribution of income;
   2. Extraordinary repairs;
   3. Repealed by Laws 2015, ch. 79 §  3.
   4. Expenses in connection with accountings and judicial or other proceedings to construe, modify or reform the trust or to protect the trust or its property;
   5. Premiums paid on a policy of insurance not described in W.S. 2-3-826(a)(iv) of which the trust is the owner and beneficiary;
   6. Estate, inheritance and other transfer taxes, including penalties, apportioned to the trust; and
   7. Disbursements related to environmental matters, including reclamation, assessing environmental conditions, remedying and removing environmental contamination, monitoring remedial activities and the release of substances, preventing future releases of substances, collecting amounts from persons liable or potentially liable for the costs of those activities, penalties imposed under environmental laws or regulations and other payments made to comply with those laws or regulations, statutory or common law claims by third parties and defending claims based on environmental matters.
2. If a principal asset is encumbered with an obligation that requires income from that asset to be paid directly to the creditor, the trustee shall transfer from principal to income an amount equal to the income paid to the creditor in reduction of the principal balance of the obligation.

History. Laws 2001, ch. 11, § 1; 2015, ch. 79, §§ 2, 3.

The 2015 amendment, effective July 1, 2015, rewrote (a)(i), (a)(ii) and (a)(iv), redefining payments from principal to include costs for certain extraordinary expenses, repairs, and trust proceedings; and repealed former (a)(iii), which read: “Payments on the principal of a trust debt”.

§ 2-3-828. Transfers from income to principal for depreciation.

1. In this section, “depreciation” means a reduction in value due to wear, tear, decay, corrosion or gradual obsolescence of a fixed asset having a useful life of more than one (1) year and the purchase cost or value of such fixed asset is more than that amount provided by section 179 of the United States Internal Revenue Code or subsequent amendment to the Internal Revenue Code.
2. A trustee may transfer to principal a reasonable amount of the net cash receipts from a principal asset that is subject to depreciation, but may not transfer any amount for depreciation:
   1. Of that portion of real property used or available for use by a beneficiary as a residence or of tangible personal property held or made available for the personal use or enjoyment of a beneficiary;
   2. During the administration of a decedent’s estate; or
   3. Under this section if the trustee is accounting under W.S. 2-3-813 for the business or activity in which the asset is used.
3. An amount transferred to principal need not be held as a separate fund.

History. Laws 2001, ch. 11, § 1; 2003, ch. 26, § 1.

Internal Revenue Code. —

Section 179 of the Internal Revenue Code appears as 26 U.S.C. § 179.

§ 2-3-829. Transfers from income to reimburse principal.

1. If a trustee makes or expects to make a principal disbursement described in this section, the trustee may transfer an appropriate amount from income to principal in one (1) or more accounting periods to reimburse principal or to provide a reserve for future principal disbursements.
2. Principal disbursements to which subsection (a) of this section applies include the following, but only to the extent that the trustee has not been and does not expect to be reimbursed by a third party:
   1. An amount chargeable to income but paid from principal because it is unusually large, including extraordinary repairs;
   2. A capital improvement to a principal asset, whether in the form of changes to an existing asset or the construction of a new asset, including special assessments;
   3. Disbursements made to prepare property for rental, including tenant allowances, leasehold improvements and broker’s commissions;
   4. Periodic payments on an obligation secured by a principal asset to the extent that the amount transferred from income to principal for depreciation is less than the periodic payments; and
   5. Disbursements described in W.S. 2-3-827(a)(vii).
3. If the asset whose ownership gives rise to the disbursements becomes subject to a successive income interest after an income interest ends, a trustee may continue to transfer amounts from income to principal as provided in subsection (a) of this section.

History. Laws 2001, ch. 11, § 1.

§ 2-3-830. Income taxes.

1. A tax required to be paid by a trustee based on receipts allocated to income must be paid from income.
2. A tax required to be paid by a trustee based on receipts allocated to principal must be paid from principal, even if the tax is called an income tax by the taxing authority.
3. A tax required to be paid by a trustee on the trust’s share of an entity’s taxable income must be paid proportionately:
   1. From income to the extent that receipts from the entity are allocated to income; and
   2. From principal to the extent that:
      1. Receipts from the entity are allocated to principal; and
      2. The trust’s share of the entity’s taxable income exceeds the total receipts described in paragraph (i) and subparagraph (ii)(A) of this subsection.
4. For purposes of this section, receipts allocated to principal or income must be reduced by the amount distributed to a beneficiary from principal or income for which the trust receives a deduction in calculating the tax.

History. Laws 2001, ch. 11, § 1.

§ 2-3-831. Adjustments between principal and income.

1. Subject to W.S. 2-3-826 and 2-3-827 , a trustee may, in the discretion of the trustee, allocate to income, principal or partly to each, the ordinary expenses incurred in connection with the administration, management or preservation of trust property and the distribution of income including the compensation of the trustee and of agents hired by the trustee including investment advisors, custodians or income tax preparation services.
   1. through (iii) Repealed by Laws 2015, ch. 79, § 3.
2. If the amount of an estate tax marital deduction or charitable contribution deduction is reduced because a fiduciary deducts an amount paid from principal for income tax purposes instead of deducting it for estate tax purposes, and as a result estate taxes paid from principal are increased and income taxes paid by an estate, trust or beneficiary are decreased, each estate, trust or beneficiary that benefits from the decrease in income tax shall reimburse the principal from which the increase in estate tax is paid. The total reimbursement must equal the increase in the estate tax to the extent that the principal used to pay the increase would have qualified for a marital deduction or charitable contribution deduction but for the payment. The proportionate share of the reimbursement for each estate, trust or beneficiary whose income taxes are reduced must be the same as its proportionate share of the total decrease in income tax. An estate or trust shall reimburse principal from income.

History. Laws 2001, ch. 11, § 1; 2015, ch. 79, §§ 2, 3.

The 2015 amendment, effective July 1, 2015, rewrote the introductory language of (a), which formerly read: “A fiduciary may make adjustments between principal and income to offset the shifting of economic interests or tax benefits between income beneficiaries and remainder beneficiaries which arise from”; and repealed former (a)(i) through (a)(iii), pertaining to offset adjustments.

§ 2-3-832. Judicial control of discretionary powers.

1. A court shall not change a fiduciary’s decision to exercise or not to exercise a discretionary power conferred by this act unless it determines that the decision was an abuse of the fiduciary’s discretion. A court shall not determine that a fiduciary abused its discretion merely because the court would have exercised the discretion in a different manner or would not have exercised the discretion.
2. The decisions to which subsection (a) of this section applies include:
   1. A determination under W.S. 2-3-804(a) of whether and to what extent an amount should be transferred from principal to income or from income to principal;
   2. A determination of the factors that are relevant to the trust and its beneficiaries, the extent to which they are relevant, and the weight, if any, to be given to the relevant factors, in deciding whether and to what extent to exercise the power conferred by W.S. 2-3-804(a).
3. If a court determines that a fiduciary has abused its discretion, the remedy is to restore the income and remainder beneficiaries to the positions they would have occupied if the fiduciary had not abused its discretion, according to the following rules:
   1. To the extent that the abuse of discretion has resulted in no distribution to a beneficiary or a distribution that is too small, the court shall require the fiduciary to distribute from the trust to the beneficiary an amount that the court determines will restore the beneficiary, in whole or in part, to his appropriate position;
   2. To the extent that the abuse of discretion has resulted in a distribution to a beneficiary that is too large, the court shall restore the beneficiaries, the trust, or both, in whole or in part, to their appropriate positions by requiring the fiduciary to withhold an amount from one (1) or more future distributions to the beneficiary who received the distribution that was too large or requiring that beneficiary to return some or all of the distribution to the trust;
   3. To the extent that the court is unable, after applying paragraphs (i) and (ii) of this subsection, to restore the beneficiaries, the trust, or both, to the positions they would have occupied if the fiduciary had not abused its discretion, the court may require the fiduciary to pay an appropriate amount from its own funds to one (1) or more of the beneficiaries or the trust or both.
4. Upon a petition by the fiduciary, the court having jurisdiction over the trust or estate shall determine whether a proposed exercise or nonexercise by the fiduciary of a discretionary power conferred by this act will result in an abuse of the fiduciary’s discretion. If the petition describes the proposed exercise or nonexercise of the power and contains sufficient information to inform the beneficiaries of the reasons for the proposal, the facts upon which the fiduciary relies, and an explanation of how the income and remainder beneficiaries will be affected by the proposed exercise or nonexercise of the power, a beneficiary who challenges the proposed exercise or nonexercise has the burden of establishing that it will result in an abuse of discretion.

History. Laws 2001, ch. 11, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 2-3-802(a)(xiv).

§ 2-3-833. Uniformity of application and construction.

In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

History. Laws 2001, ch. 11, § 1.

Meaning of “this act.” —

For the definition of “this uniform act,” referred to in this section, see § 2-3-802(a)(xiv).

§ 2-3-834. Application of act to trusts and estates; principal place of administration.

This act applies to every trust that has its principal place of administration in Wyoming and to every decedent’s estate probated in Wyoming except where the trust or will expressly applies the principal and income act of another state or as otherwise expressly provided in this act.

History. Laws 2001, ch. 11, § 1; 2019, ch. 45, § 1.

The 2019 amendment, effective July 1, 2019, inserted "that has its principla place of administration in Wyoming and to every" preceding "decedent's estate", "where the trust or will expressly applies the principal and income act of another state or," preceding "as otherwise expressly," substituted "probated in Wyoming" for "existing on the effective date of this act", and substituted "in the will or terms of the trust or in" preceding "this act."

Editor's notes. —

The effective date of this act is the effective date of Laws 2001, ch. 11, § 1, that is, July 1, 2001.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 2-3-802(a)(xiv).

§ 2-3-835. Trustee discretion to include capital gains in income.

1. To the extent a trustee is given the power to make mandatory or discretionary distributions of income, the trustee may, on an annual basis, include realized capital gains in trust income and in determining section 643(a) of the Internal Revenue Code distributable net income, if the allocation is reasonable and impartial.
2. To the extent a trustee is given the power to make mandatory or discretionary distributions of principal, the trustee may, on an annual basis, include realized capital gains in determining Section 643(a) Internal Revenue Code distributable net income, if the allocation is reasonable and impartial.

History. Laws 2015, ch. 79, § 1.

Effective date. —

Laws 2015, ch. 79, § 1 makes the act effective July 1, 2015.

§ 2-3-901. Short title.

This act shall be known and may be cited as the “Wyoming Unitrust Act”.

History. Laws 2007, ch. 154, § 1.

§ 2-3-902. Definitions.

1. As used in this act:
   1. “Beneficiary” means a person as defined in W.S. 2-3-802(a)(ii);
   2. “Disinterested person” means a person who is not a “related or subordinate party” as defined in § 672(c) of the Internal Revenue Code, with respect to the person then acting as trustee of the trust and excludes the settlor of the trust and any interested trustee;
   3. “Income trust” means a trust, created by either an inter vivos or a testamentary instrument, which directs or permits the trustee to distribute the net income of the trust to one (1) or more persons, either in fixed proportions or in amounts or proportions determined by the trustee. Notwithstanding the foregoing, no trust that otherwise is an “income trust” shall qualify under this act, if it may be subject to taxation under Internal Revenue Code §§ 2001 or 2501, until the expiration of the period for filing the return therefore, including extensions;
   4. “Interested distributee” means a person to whom distributions of income or principal can currently be made who has the power to remove the existing trustee and designate as successor a person who may be a “related or subordinate party”, as defined in Internal Revenue Code § 672(c) with respect to the distributee;
   5. “Interested trustee” means:
      1. An individual trustee to whom the net income or principal of the trust can currently be distributed or would be distributed if the trust were then to terminate and be distributed;
      2. Any trustee who may be removed and replaced by an interested distributee; or
      3. An individual trustee whose legal obligation to support a beneficiary may be satisfied by distributions of income and principal of the trust.
   6. “Total return unitrust” means an income trust which has been created or converted under and meets the provisions of this act;
   7. “Trustee” means all persons acting as trustee of the trust, except where expressly noted otherwise, whether acting in their discretion or on the direction of one (1) or more persons acting in a fiduciary capacity;
   8. “Settlor” means a person as defined in W.S. 4-10-103(a)(xviii);
   9. “Unitrust amount” means an amount computed as a percentage of the fair market value of the trust;
   10. “This act” means W.S. 2-3-901 through 2-3-917 .

History. Laws 2007, ch. 154, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 2-3-903. Unitrust election by trustee; requirements to make unitrust election.

1. A trustee, other than an interested trustee, or where two (2) or more persons are acting as trustees, a majority of the trustees who are not interested trustees may, in its sole discretion and without the approval of the district court:
   1. Elect to release the power to adjust described in W.S. 2-3-804 and to convert an income trust to a total return unitrust;
   2. Reconvert a total return unitrust to an income trust and reinstate the power to adjust described in W.S. 2-3-804 ; or
   3. Change the percentage used to calculate the unitrust amount or the method used to determine the fair market value of the trust if the following requirements are completed:
      1. The trustee adopts a written policy for the trust providing:
         1. In the case of a trust being administered as an income trust, that future distributions from the trust will be unitrust amounts rather than net income;
         2. In the case of a trust being administered as a total return unitrust, that future distributions from the trust will be net income rather than unitrust amounts; or
         3. That the percentage used to calculate the unitrust amount or the method used to determine the fair market value of the trust will be changed as stated in the policy.
2. The trustee shall mail notice of the proposed action to all beneficiaries who are receiving, or are entitled to receive, income under the trust or to receive a distribution of principal if the trust were terminated at the time the notice is given assuming nonexercise of all powers of appointment.
3. Notice of proposed action need not be given to any person who consents in writing to the proposed action. The consent may be executed at any time before or after the proposed action is taken.
4. The written notice of its intention to take action shall include the following:
   1. The name and mailing address of the trustee;
   2. The name and telephone number of a person who may be contacted for additional information;
   3. A description of the action proposed to be taken and an explanation of the reasons for the action;
   4. A copy of the trustee’s written policy discussed in subparagraph (a)(iii)(A) of this section;
   5. The time within which objections to the proposed action can be made, which shall be at least thirty (30) days from the mailing of the notice of proposed action; and
   6. The date on or after which the proposed action may be taken or is effective.
5. A beneficiary may object to the proposed action by mailing a written objection to the trustee stating the objection and the basis or reason for the objection at the address stated in the notice of proposed action within the time period specified in the notice of proposed action.
6. If the trustee receives a written objection stating the basis or reason for the objection within the applicable period, either the trustee or a beneficiary may petition the court to have the proposed action taken as proposed, taken with modifications, or denied.
7. A beneficiary who has not objected is not estopped from opposing the proposed action in the proceeding.
8. If the trustee decides not to implement the proposed action, the trustee shall notify the beneficiaries of the decision not to take the action and the reasons for the decision, and the trustee’s decision not to implement the proposed action shall not itself give rise to liability to any current or future beneficiary.

History. Laws 2007, ch. 154, § 1.

§ 2-3-904. Unitrust election where there is no trustee other than an interested trustee; requirements to make unitrust election.

1. If there is no trustee of the trust other than an interested trustee, the interested trustee, or where two (2) or more persons are acting as trustees and are interested trustees, a majority of the interested trustees, in its sole discretion and without the approval of the district court, may:
   1. Elect to release the power to adjust described in W.S. 2-3-804 and to convert an income trust to a total return unitrust;
   2. Reconvert a total return unitrust to an income trust and reinstate the power to adjust described in W.S. 2-3-804 ; or
   3. Change the percentage used to calculate the unitrust amount or the method used to determine the fair market value of the trust if the requirements of W.S. 2-3-903(a) through (f) are completed and the trustee appoints a disinterested person who, in its sole discretion but acting in a fiduciary capacity, determines for the trustee:
      1. The percentage to be used to calculate the unitrust amount;
      2. The method to be used in determining the fair market value of the trust; and
      3. Which assets, if any are to be excluded in determining the unitrust amount.

History. Laws 2007, ch. 154, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 2-3-905. Unitrust election by beneficiary; ability to request trustee action.

1. A beneficiary, who is receiving, or is entitled to receive, income under the trust or to receive a distribution of principal if the trust were terminated, may:
   1. Submit to the trustee a written request to convert an income trust to a total return unitrust;
   2. Reconvert a total return unitrust to an income trust; or
   3. Change the percentage used to calculate the unitrust amount pursuant to W.S. 2-3-904 .
2. If the trustee declines or fails to act within six (6) months of receipt of the written request, the beneficiary may petition the district court to order the conversion or adjustment.

History. Laws 2007, ch. 154, § 1.

§ 2-3-906. Settlor created unitrust.

A settlor may create a trust instrument with terms providing that the trust shall be administered as a total return unitrust under this act. A settlor may also create a trust instrument with terms providing that the trust may be administered as either an income trust or as a total return unitrust under this act in the discretion of the trustee or a trust protector appointed in the trust instrument.

History. Laws 2007, ch. 154, § 1.

§ 2-3-907. Valuations.

1. The fair market value of a trust subject to this act shall be determined, at least annually, using a valuation date or dates or averages of valuation dates as are deemed appropriate except that:
   1. The trustee shall not include in the fair market value the value of any residential property or any tangible personal property that the income beneficiary has the right to occupy or use;
   2. The trustee shall not limit or restrict any right of the beneficiary to use the excluded property in accordance with the governing instrument; and
   3. Where the terms of the trust do not provide contrary direction, the trustee shall include in the fair market value the value of:
      1. The portion of any private or commercial annuity from which the trustee is receiving distributions as a designated beneficiary of the annuity; and
      2. The portion of any individual retirement account and pension, profit-sharing, stock bonus or stock ownership plan retirement account from which the trustee is receiving distributions as a designated beneficiary of the account.
2. Assets for which a fair market value cannot be readily ascertained shall be valued using valuation methods as are deemed reasonable and appropriate as determined in the sole discretion of the trustee. The assets may be excluded from valuation in the sole discretion of the trustee, provided all income received with respect to the assets is distributed to the extent distributable in accordance with the terms of the governing instrument.

History. Laws 2007, ch. 154, § 1; 2009, ch. 71, § 1.

The 2009 amendment, added (a)(iii) and made related changes.

Laws 2009, ch. 71, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by Article 4, Section 8 of the Wyoming Constitution

§ 2-3-908. Unitrust percentages.

The percentage to be used in determining the unitrust amount shall be a reasonable current return from the trust, in any event not less than three percent (3%) nor more than five percent (5%), taking into account the intentions of the settlor of the trust as expressed in the governing instrument, the needs of the beneficiaries, general economic conditions, projected current earnings and appreciation for the trust, and projected inflation and its impact on the trust.

History. Laws 2007, ch. 154, § 1.

§ 2-3-909. Treatment and allocation of income.

1. Following the conversion of an income trust to a total return unitrust or upon creation of a total return unitrust by a settlor, the trustee:
   1. Shall treat the unitrust amount as net income of the trust for purposes of determining the amount available, from time to time, for distribution from the trust; and
   2. May allocate to trust income for each taxable year of the trust, or portion thereof:
      1. Net short-term capital gain described in Internal Revenue Code § 1222(5) for the year, or portion thereof, but only to the extent that the amount so allocated together with all other amounts allocated to trust income for the year, or portion thereof does not exceed the unitrust amount for the year, a portion thereof; and
      2. Net long-term capital gain described in Internal Revenue Code § 1222(7) for the year, or portion thereof, but only to the extent that the amount so allocated together with all other amounts, including amounts described in subparagraph (A) of this paragraph, allocated to trust income for the year, or portion thereof, does not exceed the unitrust amount for the year, or portion thereof.

History. Laws 2007, ch. 154, § 1; 2015, ch. 79, § 2.

The 2015 amendment, effective July 1, 2015, in (a)(i), substituted “as net income” for “as if it were net income.”

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 2-3-910. Administration.

1. In administering a total return unitrust, the trustee may, in its sole discretion, but subject to the provisions of the governing instrument, determine:
   1. The effective date of the conversion;
   2. The timing of distributions, including provisions for prorating a distribution for a short year in which a beneficiary’s right to payments commences or ceases;
   3. Whether distributions are to be made in cash or in kind or partly in cash and partly in kind;
   4. If the trust is reconverted to an income trust, the effective date of the reconversion; and
   5. Other administrative issues as may be necessary or appropriate to carry out the purposes of this act.

History. Laws 2007, ch. 154, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 2-3-911. Treatment of underpayments or overpayments.

In the event of an underpayment to a beneficiary, the trustee shall pay to a beneficiary within a reasonable time, and in the event of an overpayment to a beneficiary, the trustee shall recover from the beneficiary either by repayment by the beneficiary or by withholding from future distributions to the beneficiary, an amount equal to the difference between the amount properly payable and the amount actually paid.

History. Laws 2007, ch. 154, § 1.

§ 2-3-912. Effect of conversion on governing instrument.

Conversion to a total return unitrust under the provisions of this act shall not affect any other provision of the governing instrument, if any, regarding distributions of principal.

History. Laws 2007, ch. 154, § 1.

§ 2-3-913. Situs.

1. This act shall be construed as pertaining to the administration of a trust and shall be available to any trust that is administered in Wyoming under Wyoming law unless:
   1. The governing instrument reflects an intention that the beneficiary or beneficiaries are to receive an amount other than a reasonable current return from the trust;
   2. The trust is a trust described in Internal Revenue Code §§ 170(f)(2)(B), 664(d), 2702(a)(3) or 2702(b); or
   3. The governing instrument expressly prohibits use of this act by specific reference to this act.

History. Laws 2007, ch. 154, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 2-3-914. Trustee's liability.

Any trustee or disinterested person who in good faith takes or fails to take any action under this act shall not be liable to any person affected by the action or inaction, regardless of whether the person received written notice as provided in this act and regardless of whether the person was under a legal disability at the time of the delivery of the notice. The person’s exclusive remedy shall be to obtain an order of the district court directing the trustee to convert an income trust to a total return unitrust, to reconvert from a total return unitrust to an income trust or to change the percentage used to calculate the unitrust amount.

History. Laws 2007, ch. 154, § 1.

§ 2-3-915. Judicial control of discretionary powers.

1. A court shall not change a trustee’s decision to exercise or not to exercise a discretionary power conferred by this act unless it determines that the decision was an abuse of the trustee’s discretion. A court shall not determine that a trustee abused its discretion merely because the court would have exercised the discretion in a different manner or would not have exercised the discretion.
2. Where a beneficiary elects to challenge an action or nonaction by a trustee or disinterested party under the powers and authority granted in the party under this act, the beneficiary has the burden of establishing, by a preponderance of the evidence, that the actions or nonactions by a trustee or a disinterested party abused the trustee’s or the party’s discretion. A beneficiary who fails to state a basis or reason for an objection or fails to prove by a preponderance of the evidence the proposed action should be taken or should not be taken shall be liable to all other beneficiaries for damages and costs associated with the objection.

History. Laws 2007, ch. 154, § 1.

§ 2-3-916. Limitation of election.

An action shall not be taken under W.S. 2-3-903 , 2-3-904 or 2-3-905 more frequently than every two (2) years, unless the district court orders otherwise.

History. Laws 2007, ch. 154, § 1.

§ 2-3-917. Application.

This act applies to every trust or decedent’s estate existing on July 1, 2007 or created thereafter except as otherwise expressly provided in the will or terms of the trust or in this act.

History. Laws 2007, ch. 154, § 1.

§ 2-3-1001. Uniform Fiduciary Access to Digital Assets Act; short title.

This act shall be known and may be cited as the “Uniform Fiduciary Access to Digital Assets Act.”

History. Laws 2016, ch. 39, § 1.

Effective date. —

Laws 2016, ch. 39, § 3, makes the act effective July 1, 2016. Approved March 4, 2016.

§ 2-3-1002. Definitions.

1. As used in this act:
   1. “Account” means an arrangement under a terms of service agreement in which a custodian carries, maintains, processes, receives or stores a digital asset of a user or provides goods or services to a user;
   2. “Agent” means an attorney in fact granted authority under a power of attorney;
   3. “Carries” means engages in the transmission of an electronic communication;
   4. “Catalogue of electronic communications” means information that identifies a person with which a user has had an electronic communication, including the person’s electronic address, and the time and date of the communication;
   5. “Content of electronic communications” means information concerning the substance or meaning of an electronic communication that:
      1. Has been sent or received by a user;
      2. Is in electronic storage by a custodian providing an electronic communication service to the public or is carried or maintained by a custodian providing a remote computing service to the public; and
      3. Is not readily accessible to the public.
   6. “Custodian” means a person that carries, maintains, processes, receives or stores a digital asset of a user through the internet as defined in W.S. 9-2-3219(a)(iii);
   7. “Designated recipient” means a person chosen by a user using an online tool to administer digital assets of the user;
   8. “Digital asset” means an electronic record in which a person has a right or interest. “Digital asset” does not include an underlying asset or liability unless the asset or liability is itself an electronic record;
   9. “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities;
   10. “Electronic communication” means an electronic communication as defined in section 2510 of title 18 of the United States Code, as amended;
   11. “Electronic communication service” means a custodian that provides to a user the ability to send or receive an electronic communication;
   12. “Fiduciary” means a personal representative, trustee, executor, administrator, guardian, agent, conservator or other person performing substantially these same functions. To be a fiduciary under this act a person must be authorized to act as a fiduciary with respect to the digital assets of a user or a user’s estate. A fiduciary shall have those privileges, powers and obligations granted under this act which are not inconsistent with other privileges, powers or obligations imposed by this act on specific types of fiduciaries;
   13. “Information” means data, text, images, videos, sounds, codes, computer programs, software, databases or the like;
   14. “Online tool” means an electronic service provided by a custodian that allows a user, in an agreement distinct from a terms of service agreement between the custodian and the user, to provide directions for disclosure or nondisclosure of digital assets to a third person;
   15. “Principal” means a person who grants authority to an agent in a power of attorney;
   16. “Record” means information that is inscribed on a tangible medium or stored in an electronic or other medium and is retrievable in perceivable form;
   17. “Remote computing service” means a custodian that provides to a user computer processing services or the storage of digital assets by means of an electronic communications system, as defined in section 2510 of title 18 of the United States Code, as amended;
   18. “Terms of service agreement” means an agreement that controls the relationship between a user and a custodian;
   19. “User” means a person that has an account with a custodian;
   20. “Ward” means a person for whom a conservator has been appointed, including a person for whom an application for the appointment of a conservator is pending;
   21. “This act” means W.S. 2-3-1001 through 2-3-1017 .

History. Laws 2016, ch. 39, § 1; 2021, ch. 56, § 3.

The 2021 amendment , substituted "9-2-3219(a)(iii)" for "9-2-1035(a)(iii)" in (a)(vi).

Laws 2021, ch. 56, § 7, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved April 1, 2021.

§ 2-3-1003. Applicability.

1. This act applies to:
   1. A fiduciary acting under a will, power of attorney or other authorization to act as a fiduciary with respect to the digital assets of a user entered or executed before, on or after July 1, 2016;
   2. A personal representative acting for a decedent who died before, on or after July 1, 2016;
   3. A conservatorship proceeding commenced before, on or after July 1, 2016; and
   4. A trustee acting under a trust created before, on or after July 1, 2016.
2. This act applies to a custodian of digital assets of a user who resides in the state or resided in the state at the time of the user’s death.
3. This act does not apply to digital assets of an employer used by an employee in the ordinary course of the employer’s business.

History. Laws 2016, ch. 39, § 1.

Effective date. —

Laws 2016, ch. 39, § 3, makes the act effective July 1, 2016. Approved March 4, 2016.

§ 2-3-1004. User direction for disclosure of digital assets.

1. A user may use an online tool to direct a custodian to disclose or not to disclose to a designated recipient some or all of the user’s digital assets, including the content of electronic communications sent or received by the user. If the online tool at all times allows a user to modify or delete a direction to a custodian to disclose some or all of the user’s digital assets, the direction regarding disclosure overrides a contrary direction by the user in a will, trust, power of attorney or other like record.
2. If a user has not used an online tool to direct a custodian under subsection (a) of this section or if a custodian has not provided an online tool, the user may direct in a will, trust, power of attorney or other like record the disclosure or nondisclosure to a fiduciary some or all of the user’s digital assets, including the content of electronic communications sent or received by the user.
3. A user’s direction under subsection (a) or (b) of this section overrides a contrary provision in a terms of service agreement if the agreement did not require the user to act affirmatively and distinctly from the user’s assent to the agreement.

History. Laws 2016, ch. 39, § 1.

Effective date. —

Laws 2016, ch. 39, § 3, makes the act effective July 1, 2016. Approved March 4, 2016.

§ 2-3-1005. Terms of service agreement.

1. This act does not change or impair a right of a custodian or a user under a terms of service agreement to access and use digital assets of the user.
2. This act does not give a fiduciary or designated recipient new or expanded rights other than those rights held by the user for whom, or for whose estate, the fiduciary or designated recipient acts or represents.
3. A fiduciary’s or designated recipient’s access to digital assets may be modified or eliminated by a user, federal law or a terms of service agreement if the user has not provided direction under W.S. 2-3-1004 .

History. Laws 2016, ch. 39, § 1.

Effective date. —

Laws 2016, ch. 39, § 3, makes the act effective July 1, 2016. Approved March 4, 2016.

§ 2-3-1006. Procedure for disclosing digital assets.

1. When disclosing digital assets of a user under this act, a custodian may:
   1. Grant a fiduciary or designated recipient full access to the user’s account;
   2. Grant a fiduciary or designated recipient partial access to the user’s account sufficient to perform the tasks with which the fiduciary or designated recipient is charged; or
   3. Provide a fiduciary or designated recipient a copy in a record of any digital asset that, on the date the custodian received the request for disclosure, the user could have accessed if the user were alive and had full capacity and access to the account.
2. A custodian may assess a reasonable administrative fee for the cost of disclosing digital assets under this act.
3. A custodian is not required to disclose under this act a digital asset deleted by a user.
4. A custodian is not required to disclose under this act a user’s digital assets if the user directs or a fiduciary requests a custodian to disclose some, but not all, of the user’s digital assets and the segregation of the assets would impose an undue burden on the custodian. If a custodian finds that a direction or request imposes an undue burden, the custodian or fiduciary may seek an order from the circuit court or other court of competent jurisdiction to disclose:
   1. A subset of the user’s digital assets limited by date to the fiduciary or designated recipient;
   2. All of the user’s digital assets to the fiduciary or designated recipient;
   3. None of the user’s digital assets to the fiduciary or designated recipient; or
   4. All of the user’s digital assets to the court for an in camera review.

History. Laws 2016, ch. 39, § 1.

Effective date. —

Laws 2016, ch. 39, § 3, makes the act effective July 1, 2016. Approved March 4, 2016.

§ 2-3-1007. Disclosure of the content of electronic communications of a deceased user.

1. A custodian shall disclose to a personal representative of the estate of a deceased user the content of electronic communications sent or received by the user if the user directed disclosure as specified in W.S. 2-3-1004 or a court directs disclosure of the content of electronic communications of the user and if the representative provides the custodian with the following:
   1. A request for disclosure in written or electronic form;
   2. A certified copy of the death certificate of the user;
   3. A certified copy of the court order appointing the personal representative;
   4. Unless the user provided direction using an online tool, a copy of the user’s will, trust, power of attorney or other like record evidencing the user’s consent to disclosure of the content of electronic communications; and
   5. If requested by the custodian:
      1. A number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;
      2. Evidence linking the account to the user; or
      3. A finding by a circuit court or other court of competent jurisdiction that:
         1. The user had a specific account with the custodian identifiable by the information specified in subparagraph (A) of this paragraph;
         2. Disclosure of the content of electronic communications of the user would not violate section 2701 et seq. of title 18 of the United States Code, as amended, or section 222 of title 47 of the United States Code, as amended, or other applicable law;
         3. Unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications as specified in W.S. 2-3-1004 ; or
         4. Disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate.

History. Laws 2016, ch. 39, § 1.

Effective date. —

Laws 2016, ch. 39, § 3, makes the act effective July 1, 2016. Approved March 4, 2016.

§ 2-3-1008. Disclosure of other digital assets of a deceased user.

1. Unless otherwise directed by a court order or a user as specified in W.S. 2-3-1004 , a custodian shall disclose to the personal representative of the estate of a deceased user a catalogue of electronic communications sent or received by the user and digital assets of the user, other than the content of electronic communications, if the representative provides the custodian with the following:
   1. A request for disclosure in written or electronic form;
   2. A certified copy of the death certificate of the user;
   3. A certified copy of the court order appointing the personal representative; and
   4. If requested by the custodian:
      1. A number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;
      2. Evidence linking the account to the user;
      3. An affidavit stating that disclosure of the user’s digital assets is reasonably necessary for administration of the estate; or
      4. A finding by a circuit court or other court of competent jurisdiction that:
         1. The user had a specific account with the custodian identifiable by the information specified in subparagraph (A) of this paragraph; or
         2. Disclosure of the user’s digital assets is reasonably necessary for administration of the estate.

History. Laws 2016, ch. 39, § 1.

Effective date. —

Laws 2016, ch. 39, § 3, makes the act effective July 1, 2016. Approved March 4, 2016.

§ 2-3-1009. Disclosure of content of electronic communications of a principal.

1. To the extent a power of attorney expressly grants an agent authority over the content of electronic communications sent or received by a principal and unless otherwise directed by a court order or the principal as specified in W.S. 2-3-1004 , a custodian shall disclose to the agent the content of electronic communications sent or received by the principal if the agent provides the custodian with the following:
   1. A request for disclosure in written or electronic form;
   2. An original or copy of the power of attorney expressly granting the agent authority over the content of electronic communications of the principal;
   3. A certification by the agent, under penalty of perjury, that the power of attorney is in effect; and
   4. If requested by the custodian:
      1. A number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the principal’s account; or
      2. Evidence linking the account to the principal.

History. Laws 2016, ch. 39, § 1.

Effective date. —

Laws 2016, ch. 39, § 3, makes the act effective July 1, 2016. Approved March 4, 2016.

§ 2-3-1010. Disclosure of other digital assets of a principal.

1. Unless otherwise directed by a court order, a principal as specified in W.S. 2-3-1004 or a power of attorney, a custodian shall disclose to an agent a catalogue of electronic communications sent or received by the principal and digital assets of the principal, other than the content of electronic communications, if the agent provides the custodian with the following:
   1. A request for disclosure in written or electronic form;
   2. An original or a copy of the power of attorney that gives the agent specific authority over digital assets of the principal or general authority to act on behalf of the principal;
   3. A certification by the agent, under penalty of perjury, that the power of attorney is in effect; and
   4. If requested by the custodian:
      1. A number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the principal’s account; or
      2. Evidence linking the account to the principal.

History. Laws 2016, ch. 39, § 1.

Effective date. —

Laws 2016, ch. 39, § 3, makes the act effective July 1, 2016. Approved March 4, 2016.

§ 2-3-1011. Disclosure of digital assets held in trust when trustee is original user.

Unless otherwise directed by a court order or a trust, a custodian shall disclose to a trustee who is an original user of an account of the trust digital assets of the account, including a catalogue of electronic communications of the trustee and the content of electronic communications sent or received by the trustee and carried, maintained, processed, received or stored by the custodian in the account.

History. Laws 2016, ch. 39, § 1.

Effective date. —

Laws 2016, ch. 39, § 3, makes the act effective July 1, 2016. Approved March 4, 2016.

§ 2-3-1012. Disclosure of the content of electronic communications held in trust when trustee not original user.

1. Unless otherwise directed by a court order, a user as specified in W.S. 2-3-1004 or a trust, a custodian shall disclose to a trustee who is not an original user of an account of the trust the content of an electronic communication sent or received by an original or successor user and carried, maintained, processed, received or stored by the custodian in the account if the trustee provides the custodian with the following:
   1. A request for disclosure in written or electronic form;
   2. A certification or affidavit of trust as provided in W.S. 4-10-1014 that includes consent to disclosure of the content of electronic communications to the trustee;
   3. A certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust; and
   4. If requested by the custodian:
      1. A number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the trust’s account; or
      2. Evidence linking the account to the trust.

History. Laws 2016, ch. 39, § 1.

Effective date. —

Laws 2016, ch. 39, § 3, makes the act effective July 1, 2016. Approved March 4, 2016.

§ 2-3-1013. Disclosure of other digital assets held in trust when trustee not original user.

1. Unless otherwise directed by a court order, a user as specified in W.S. 2-3-1004 or a trust, a custodian shall disclose to a trustee who is not an original user of an account of a trust a catalogue of electronic communications sent or received by an original or successor user and carried, maintained, processed, received or stored by the custodian in the account and digital assets in which the trust has a right or interest, other than the content of electronic communications, if the trustee provides the custodian with the following:
   1. A request for disclosure in written or electronic form;
   2. A certification or affidavit of trust as provided in W.S. 4-10-1014 that includes consent to disclosure of the content of electronic communications to the trustee;
   3. A certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust; and
   4. If requested by the custodian:
      1. A number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the trust’s account; or
      2. Evidence linking the account to the trust.

History. Laws 2016, ch. 39, § 1.

Effective date. —

Laws 2016, ch. 39, § 3, makes the act effective July 1, 2016. Approved March 4, 2016.

§ 2-3-1014. Disclosure of digital assets to conservator of a ward.

1. After an opportunity for a hearing under title 3, chapter 2 of the Wyoming statutes, the court may grant a conservator access to the digital assets of a ward.
2. Unless otherwise directed by a court order or a user as specified in W.S. 2-3-1004 , a custodian shall disclose to a conservator the catalogue of electronic communications sent or received by a ward and digital assets in which the ward has a right or interest, other than the content of electronic communications, if the conservator provides the custodian with the following:
   1. A request for disclosure in written or electronic form;
   2. A certified copy of the court order that gives the conservator authority over the digital assets of the ward; and
   3. If requested by the custodian:
      1. A number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the account of the ward; or
      2. Evidence linking the account to the ward.
3. A conservator with general authority to manage the assets of a ward may request a custodian of the digital assets of the ward to suspend or terminate an account of the ward for good cause. A request made under this subsection shall be accompanied by a certified copy of the court order that gives the conservator authority over the ward’s property.

History. Laws 2016, ch. 39, § 1.

Effective date. —

Laws 2016, ch. 39, § 3, makes the act effective July 1, 2016. Approved March 4, 2016.

§ 2-3-1015. Fiduciary duty and authority.

1. The legal duties imposed on a fiduciary charged with managing tangible, personal property of a decedent, ward, principal or settlor apply to the management of digital assets, including the duty of care, loyalty and confidentiality.
2. A fiduciary’s or designated recipient’s authority with respect to digital assets of a user:
   1. Unless otherwise directed by a user as specified in W.S. 2-3-1004 , is subject to the applicable terms of service agreement;
   2. Is subject to other applicable law;
   3. In the case of a fiduciary, is limited by the scope of the fiduciary’s duties; and
   4. Shall not be used to impersonate the user.
3. A fiduciary with authority over the tangible, personal property of a decedent, ward, principal or settlor has the right to access digital assets in which the decedent, ward, principal or settlor had a right or interest and which are not carried, maintained, processed, received or stored by a custodian or subject to a terms of service agreement.
4. A fiduciary acting within the scope of the fiduciary’s duties is an authorized user of the tangible, personal property of the decedent, ward, principal or settlor for the purpose of applicable computer fraud and unauthorized computer access laws, including W.S. 40-25-101 .
5. A fiduciary with authority over the tangible, personal property of a decedent, ward, principal or settlor:
   1. Has the right to access the property and any digital asset stored in the property; and
   2. Is an authorized user for the purpose of computer fraud and unauthorized computer access laws, including W.S. 40-25-101 .
6. A custodian may disclose information in an account to a fiduciary of the user when the information is required to terminate an account used to access digital assets licensed to the user.
7. A fiduciary of a user may request a custodian to terminate the user’s account. A request for termination under this subsection shall be in writing or electronic form and accompanied by:
   1. A copy of the death certificate of the user if the user is deceased;
   2. A certified copy of the court order appointing the personal representative or a certified copy of the court order, power of attorney, trust or other authorization giving the fiduciary authority over the account; and
   3. If requested by the custodian:
      1. A number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;
      2. Evidence linking the account to the user; or
      3. A finding by a circuit court or other court of competent jurisdiction that the user had a specific account with the custodian identifiable by the information specified in subparagraph (A) of this paragraph.

History. Laws 2016, ch. 39, § 1.

Effective date. —

Laws 2016, ch. 39, § 3, makes the act effective July 1, 2016. Approved March 4, 2016.

§ 2-3-1016. Custodian compliance and immunity.

1. Not later than sixty (60) days after receipt of the information required under W.S. 2-3-1007 through 2-3-1015 , a custodian shall comply with a request from a fiduciary or designated recipient under this act to disclose digital assets or terminate an account. If the custodian fails to comply, the fiduciary or designated representative may apply to the circuit court or other court of competent jurisdiction for an order directing compliance.
2. An order under subsection (a) of this section directing compliance shall contain a finding that compliance is not in violation of section 2702 of title 18 of the United States Code, as amended.
3. A custodian may notify the user that a request for disclosure of digital assets or to terminate an account was made under this act.
4. A custodian may deny a request from a fiduciary or designated representative under this act to disclose digital assets or to terminate an account if the custodian is aware of any lawful access to the account following the receipt of the fiduciary’s or personal representative’s request.
5. This act does not limit a custodian’s ability to obtain or require a fiduciary or designated representative requesting disclosure of digital assets or termination of an account under this act to obtain a court order that:
   1. Specifies the account belongs to the ward or principal;
   2. Specifies there is sufficient consent from the ward or principal to support the requested disclosure; and
   3. Contains a finding required by law in addition to any finding required under this act.
6. A custodian and any officers, employees or agents of the custodian are immune from liability for an act or omission done in good faith to comply with the provisions of this act.

History. Laws 2016, ch. 39, § 1.

Effective date. —

Laws 2016, ch. 39, § 3, makes the act effective July 1, 2016. Approved March 4, 2016.

§ 2-3-1017. Relation to Electronic Signatures in Global and National Commerce Act.

This act modifies, limits or supersedes the Electronic Signatures in Global and National Commerce Act, section 7001 et seq. of title 15 of the United States Code, as amended, but does not modify, limit or supersede section 7001(c) of title 15 of the United States Code, as amended, or authorize electronic delivery of any of the notices described in section 7003(b) of title 15 of the United States Code, as amended.

History. Laws 2016, ch. 39, § 1.

Effective date. —

Laws 2016, ch. 39, § 3, makes the act effective July 1, 2016. Approved March 4, 2016.

§ 2-4-101. Rule of descent; generally; dower and curtesy abolished.

1. Whenever any person having title to any real or personal property having the nature or legal character of real estate or personal estate undisposed of, and not otherwise limited by marriage settlement, dies intestate, the estate shall descend and be distributed in parcenary to his kindred, male and female, subject to the payment of his debts, in the following course and manner:
   1. If the intestate leaves husband or wife and children, or the descendents of any children surviving, one-half (1/2) of the estate shall descend to the surviving husband or wife, and the residue thereof to the surviving children and descendents of children, as hereinafter limited;
   2. If the intestate leaves husband or wife and no child nor descendents of any child, then the real and personal estate of the intestate shall descend and vest in the surviving husband or wife.
      1. and (B) Repealed by Laws 1985, ch. 135, § 2.
   3. Repealed by Laws 1985, ch. 135, § 2.
2. Dower and the tenancy by the curtesy are abolished and neither husband nor wife shall have any share in the estate of the other dying intestate, save as herein provided.
3. Except in cases above enumerated, the estate of any intestate shall descend and be distributed as follows:
   1. To his children surviving, and the descendents of his children who are dead, the descendents collectively taking the share which their parents would have taken if living;
   2. If there are no children, nor their descendents, then to his father, mother, brothers and sisters, and to the descendents of brothers and sisters who are dead, the descendents collectively taking the share which their parents would have taken if living, in equal parts;
   3. If there are no children nor their descendents, nor father, mother, brothers, sisters, nor descendents of deceased brothers and sisters, nor husband nor wife, living, then to the grandfather, grandmother, uncles, aunts and their descendents, the descendents taking collectively, the share of their immediate ancestors, in equal parts.

History. C.L. 1876, ch. 42, § 1; Laws 1877, p. 35, § 1; R.S. 1887, § 2221; R.S. 1899, § 4858; C.S. 1910, § 5727; Laws 1915, ch. 4, § 1; C.S. 1920, § 7002; R.S. 1931, § 88-4001; C.S. 1945, § 6-2501; W.S. 1957, § 2-37; W.S. 1977, § 2-3-101 ; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1; 1985, ch. 135, §§ 1, 2.

Cross references. —

As to right of heirship of adopted persons, see § 2-4-107 . See also § 1-22-114 .

“Descendent” held to include adopted child. —

A son by adoption becomes the legal heir of the intestate brother of his adoptive father who died before the intestate brother, “descendant”, as used in this section, including “child” or “issue”, and therefore, when considered in connection with the adoption statutes, it includes an adopted child. In re Cadwell's Estate, 26 Wyo. 412, 186 P. 499, 1920 Wyo. LEXIS 3 (Wyo. 1920) (where “descendent” was spelled “descendant”).

Adoption at common law was unknown, and therefore, the adoption of minor children, as well as the rights and liabilities emanating therefrom, are governed by statutory provisions concerning descent, distribution and adoption. In re Estate of Randall, 506 P.2d 432, 1973 Wyo. LEXIS 142 (Wyo. 1973).

Entitlement of siblings of adopted child. —

Where two brothers were adopted by one family and several siblings were not, and where one of the brothers died intestate without any children, a district court erred in determining that the biological siblings were entitled to an inheritance; the other adopted brother's daughter was the only true heir of the decedent. Shippey v. Rogers (In re Estate of Kirkpatrick), 2003 WY 125, 77 P.3d 404, 2003 Wyo. LEXIS 150 (Wyo. 2003).

Only those persons who are heirs at law at the time of the death of an individual who dies intestate are entitled to succeed to his estate, and the second adoption of the plaintiff terminated the parent-child relationship so that he was not the adopted child of the decedent at the time of the decedent's death. Rist v. Taylor, 955 P.2d 436, 1998 Wyo. LEXIS 38 (Wyo. 1998).

Equitable adoption. —

If decedent had died intestate, Wyo. Stat. Ann. § 2-4-101(c)(i), would have applied, and the “simple” question as to decedent's “predeceased” stepchild would have been whether to apply equitable adoption so that the stepchild would have been considered decedent's child for purposes of intestate succession; however, the Wyoming Supreme Court declined to apply the doctrine of equitable adoption to affect the distribution of a testate estate, and the predeceased stepchild's children were not entitled to a residuary share. Sanderson v. Bathrick (In re Estate of Seader), 2003 WY 119, 76 P.3d 1236, 2003 Wyo. LEXIS 144 (Wyo. 2003).

Bequest to “blood relations.” —

A bequest “to any of my blood relations I give $100.00 each, they are to establish their relationship by filing in court an affidavit to that effect within one year after my death,” was held not to mean blood relations to an unlimited degree, but only those who would take under statutes of distribution. In re Gilchrist's Estate, 50 Wyo. 153, 58 P.2d 431, 1936 Wyo. LEXIS 9 (Wyo.), reh'g denied, 50 Wyo. 153, 58 P.2d 431, 1936 Wyo. LEXIS 10 (Wyo. 1936).

Antenuptial agreements are not contrary to public policy of this state. In re Estate of Borton, 393 P.2d 808, 1964 Wyo. LEXIS 112 (Wyo. 1964).

The supreme court of Wyoming has long favored agreements between husband and wife entered into voluntarily as family settlement of their affairs. In re Estate of Borton, 393 P.2d 808, 1964 Wyo. LEXIS 112 (Wyo. 1964).

And agreements contrary to laws of descent and distribution authorized. —

A valid marriage settlement agreement making provision contrary to the laws of descent and distribution is specifically authorized under this section. In re Estate of Borton, 393 P.2d 808, 1964 Wyo. LEXIS 112 (Wyo. 1964).

Although results contrary to section. —

The very purpose of the provision of this section allowing marriage settlements contemplates a result contrary to this section, disproportionate as it might be. In re Estate of Borton, 393 P.2d 808, 1964 Wyo. LEXIS 112 (Wyo. 1964).

Allegations that antenuptial agreement is inequitable, unjust and unreasonably disproportionate are affirmative matters, and the burden of proof never shifts; but opposite party may be required to go forward with evidence to rebut a prima facie case. In re Estate of Borton, 393 P.2d 808, 1964 Wyo. LEXIS 112 (Wyo. 1964).

Absence of children, parents, siblings, spouse, and descendents. —

Where the only surviving relatives of the decedent were first cousins and descendents, subsection (c)(iii) required that the decedent's estate be distributed to the root generation comprised of the deceased grandfather, grandmother, uncles, and aunts per capita and then to their descendents per stirpes, rather than to the nearest living generation (the first cousins) as the root generation per capita and to their descendents per stirpes. Fosler v. Collins (In re Estate of Fosler), 13 P.3d 686, 2000 Wyo. LEXIS 225 (Wyo. 2000).

Finding of undue influence. —

Where the deceased originally left the residue and remainder of his property to his wife and two children of a previous marriage in equal shares and five days later executed a deed to his wife conveying his entire ranch to her after he allegedly changed his mind and she told him such a deed was necessary if she was to receive more than one-fourth of the ranch (this being an incorrect statement of law even if she had told him she would be restricted to such a portion of the estate only if his will was invalidated), this is evidence of undue influence by the wife. Brug v. Case, 600 P.2d 710, 1979 Wyo. LEXIS 455 (Wyo. 1979).

Federal act relating to dower held inapplicable. —

Section 18 of act of congress of March 3, 1887, ch. 397, 24 Stat. 635, conferring and regulating the right of dower did not annul or supersede the Wyoming statutes on the subject, but applied to the territory of Utah only. France v. Connor, 161 U.S. 65, 16 S. Ct. 497, 40 L. Ed. 619, 1896 U.S. LEXIS 2138 (U.S. 1896).

Rights of inheritance vest immediately on death of intestate. In re Estate of Randall, 506 P.2d 432, 1973 Wyo. LEXIS 142 (Wyo. 1973).

And devolutionary rights must be determined in relation to that date. In re Estate of Randall, 506 P.2d 432, 1973 Wyo. LEXIS 142 (Wyo. 1973).

Value of estate determined upon death of intestate, not when suit brought. —

Upon the death of the intestate, some 50 years prior to the bringing of a quiet title action by an alleged heir, title to his entire mineral estate, the value of which was at that time well below $20,000, passed to his wife, although the value of the property was arguably over $20,000 when the suit was brought. Compton v. Davis Oil Co., 607 F. Supp. 1221, 1985 U.S. Dist. LEXIS 20337 (D. Wyo. 1985) (decided prior to 1985 amendment).

Matter considered res judicata. —

Where, in a prior case, a court adjudged the title to certain mineral rights to pass under the rules of descent, if that judgment is res judicata as to this issue, it applies to both parties in a later action concerning the question of the passage of the mineral rights where they each claim by virtue of the rules of descent. Roush v. Roush, 589 P.2d 841, 1979 Wyo. LEXIS 353 (Wyo. 1979).

Administrator is not agent of heirs, does not derive his powers from them and is not subject to their control. In re Rigby's Estate, 62 Wyo. 401, 167 P.2d 964, 1946 Wyo. LEXIS 10 (Wyo. 1946).

Where administrator was selling land for purposes stated in order of sale, he was not acting as agent of decedent or his heirs, and the lessees had no preference over other bidders at public sale of land, which was subject to lease an option. In re Rigby's Estate, 62 Wyo. 401, 167 P.2d 964, 1946 Wyo. LEXIS 10 (Wyo. 1946).

And has no title to real estate. —

Under this section and § 2-7-104 , executor or administrator, as such, has no title to real estate and cannot sue to establish resulting trust to land and compel a conveyance. Cook v. Elmore, 25 Wyo. 393, 171 P. 261, 1918 Wyo. LEXIS 4 (Wyo. 1918).

Applied in

Wetering v. Eisele, 682 P.2d 1055, 1984 Wyo. LEXIS 296 (Wyo. 1984); Butler v. Halstead, 770 P.2d 698, 1989 Wyo. LEXIS 78 (Wyo. 1989).

Quoted in

Fray v. Fray, 721 P.2d 1054, 1986 Wyo. LEXIS 572 (Wyo. 1986); Peters v. Peters, 2001 WY 71, 29 P.3d 90, 2001 Wyo. LEXIS 86 (Wyo. 2001).

Stated in

In re Estate of Boyd, 606 P.2d 1243, 1980 Wyo. LEXIS 240 (Wyo. 1980); In re Estate of Ronald, 2014 WY 129, 2014 Wyo. LEXIS 146 (Oct. 14, 2014).

Cited in

Coliseum Motor Co. v. Hester, 43 Wyo. 298, 3 P.2d 105, 1931 Wyo. LEXIS 27 (1931); Booth v. Hackney, 516 P.2d 180, 1973 Wyo. LEXIS 189 (Wyo. 1973); Jordan v. Delta Drilling Co., 541 P.2d 39, 1975 Wyo. LEXIS 169 , 78 A.L.R.3d 1215 (Wyo. 1975); Gates v. Richardson, 719 P.2d 193, 1986 Wyo. LEXIS 549 (Wyo. 1986); Macaraeg v. Wilson, 749 P.2d 272, 1988 Wyo. LEXIS 11 (Wyo. 1988); Franks v. Indep. Prod. Co., 2004 WY 97, 96 P.3d 484, 2004 Wyo. LEXIS 125 (2004); Kelly v. Kilts, 2010 WY 151, 243 P.3d 947, 2010 Wyo. LEXIS 159 (Nov. 23, 2010).

Law reviews. —

See “Effect of Statutory Election for a Surviving Spouse,” 3 Wyo. L.J. 71.

See “Probable Interpretation of Wyoming Rules of Descent,” 11 Wyo. L.J. 120.

See note, “Should Marital Rights Be Protected by Statute?” 19 Wyo. L.J. 14 (1964).

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part I,” VII Land & Water L. Rev. 169 (1972).

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part II,” VIII Land & Water L. Rev. 187 (1973).

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part III,” IX Land & Water L. Rev. 567 (1974).

For case note, “Wrongful Death — Siblings as Beneficiaries Under Wyoming's Wrongful Death Statutes, Wetering v. Eisele, 682 P.2d 1055, 1984 Wyo. LEXIS 296 (Wyo. 1984),” see XX Land & Water L. Rev. 299 (1985).

For comment, “Wyoming Fetal Rights—Why the Abortion ‘Albatross’ Is a Bird of a Different Color: The Case for Fetal-Federalism,” see XXVIII Land & Water L. Rev. 627 (1993).

For case note, “Trusts & Estates—Spousal Disinheritance—Inter vivos Trusts and Wyoming's Spousal Elective Share. Briggs v. Wyoming Nat'l Bank, 836 P.2d 263, 1992 Wyo. LEXIS 81 (Wyo. 1992),” see XXIX Land & Water L. Rev. 323 (1994).

For note, “Intestacy Law — The Dual Generation Dilemma — Wyoming's Interpretation of its 130-Year-Old Intestacy Statute. Fosler v. Collins (In re Estate of Fosler), 13 P.3d 686, 2000 Wyo. LEXIS 225 (Wyo. 2000),” see 2 Wyo. L. Rev. 641 (2002).

Am. Jur. 2d, ALR and C.J.S. references. —

What law, in point of time, governs as to inheritance from adoptive parent, 18 ALR2d 960.

Descent and distribution to nieces and nephews as per stirpes or per capita, 19 ALR2d 191.

Veteran dying in Veterans' Administration facility without spouse or heirs, constitutionality of federal statute as to disposition of personal property of, 36 A.L.R.2d 725.

Adoption as affecting the right of inheritance through or from natural parent or other natural kin, 37 ALR2d 333.

Right of adopted child to inherit from kindred of adoptive parent, 43 ALR2d 1183.

What law, in point of time, governs inheritance from or through adopted person, 52 ALR2d 1228.

Descent and distribution to and among cousins, 54 ALR2d 1009.

Descent and distribution to and among uncles and aunts, 55 ALR2d 643.

Descent and distribution from stepparents to stepchildren or vice versa, 63 ALR2d 303.

Discovery of will, statute dealing with existing intestate administration, upon, 65 ALR2d 1201.

Solid mineral royalty as real or personal property for purposes of descent and distribution, 68 ALR2d 732.

Right of children of adopted child to inherit from the adopting parent, 94 ALR2d 1200.

Family settlement of intestate estate, 29 ALR3d 174.

Construction, application and effect of Uniform Simultaneous Death Act, 39 ALR3d 1332.

Descent and distribution of property of adopted child, 48 ALR3d 818.

Right of adopted child to inherit from intestate natural grandparent, 60 ALR3d 631.

Rights in decedent's estate as between lawful and putative spouses, 81 ALR3d 6.

Estoppel or laches precluding lawful spouse from asserting rights in decedent's estate as against putative spouse, 81 ALR3d 110.

Right of illegitimate grandchildren to take under testamentary gift to “grandchildren,” 17 ALR4th 1292.

Statutory or constitutional provision allowing widow but not widower to take against will and receive dower interests, allowances, homestead rights, or the like as denial of equal protection of law, 18 ALR4th 910.

Eligibility of illegitimate child for survivor's benefits under Social Security Act, pursuant to § 216(h)(2)(A) of Act (42 U.S.C. § 416(h)(2)(A)), where state intestacy law denying inheritance right, or application of that state law to § 216(h)(2)(A), may violate child's right to equal protection of law, 116 ALR Fed 121.

§ 2-4-102. Rule of descent; illegitimate person. [Repealed]

History. C.L. 1876, ch. 42, § 10; R.S. 1887, § 2230; R.S. 1899, § 4864; C.S. 1910, § 5733; C.S. 1920, § 7008; R.S. 1931, § 88-4007; C.S. 1945, § 6-2509; W.S. 1957, § 2-38; W.S. 1977, § 2-3-102 ; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1; Repealed by Laws 2019, ch. 125, § 2.

§ 2-4-103. Posthumous persons.

Persons conceived before the decedent’s death but born thereafter inherit as if they had been born in the lifetime of the decedent.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

Am. Jur. 2d, ALR and C.J.S. references. —

Pretermitted heir statutes: what constitutes sufficient testamentary reference to, or evidence of contemplation of, heir to render statute inapplicable, 83 ALR4th 779.

Law reviews. —

For comment, “Fetal Equality?: The Equality State's Response to the Challenge of Protecting Unborn Children,” see XXXII Land & Water L. Rev. 193 (1997).

§ 2-4-104. Kindred of half blood; stepchildren; foster children.

Persons of the half-blood inherit the same share they would inherit if they were of the whole blood, but stepchildren and foster children and their descendents do not inherit.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

Equitable adoption. —

Foster children provision must be interpreted in light of the stated overall goals of simplicity, clarity, speed, and efficiency, and the doctrine of equitable adoption is anything but simple, clear, or speedy in application; Wyoming does not recognize the doctrine of equitable adoption. Therefore, a claimant was unable to recover from a decedent, who was not her biological father; the decedent could have adopted the claimant or provided for her in his will, but did neither. In re Estate of Ronald, 2014 WY 129, 336 P.3d 129, 2014 Wyo. LEXIS 146 (Wyo. 2014).

Am. Jur. 2d, ALR and C.J.S. references. —

Rights of inheritance as between kindred of whole and half blood, 47 ALR4th 561.

Adopted child as within class named in deed or inter vivos trust instrument, 37 ALR5th 237.

§ 2-4-105. Alienage not to affect inheritance; exception; burden of proof; when property to escheat to state.

1. The alienage of the legal heirs shall not invalidate any title to real estate which shall descend or pass from the decedent, except that no nonresident alien who is a citizen of any country foreign to the United States of America, shall by any manner or means acquire real property in this state by succession or testamentary disposition if the laws of the country of which the nonresident alien is a citizen do not allow citizens of the United States of America to take real property by succession or by testamentary disposition.
2. If a decedent leaves no heirs, devisees or legatees entitled to take real property under the terms of this act, the decedent’s property shall escheat to the state of Wyoming as now provided by law for escheat property.
3. The burden of proof is upon a nonresident alien to establish the existence of reciprocal rights asserted by him.

History. Laws 1959, ch. 107, §§ 1, 2; W.S. 1977, §§ 2-3-107 , 2-3-108 ; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Meaning of “this act.” —

The term “this act” should probably read “this section” since its provisions were originally derived entirely from ch. 107, Laws 1959. For the present meaning of the term “this act”, see § 2-1-101 and notes thereto.

Effect of treaty. —

While art. 1, § 29, Wyo. Const., permitting resident aliens to inherit same as citizens and former statute providing that alienage of “descendants” should not invalidate title to real estate by “descent” would not permit collateral nonresident aliens to take, such collaterals, living in Ireland, might take under provision of treaty with Great Britain that, on death of any person holding real property within the territories of one country, relatives in the other would not be disqualified as aliens. Bamforth v. Ihmsen, 28 Wyo. 282, 204 P. 345, 1922 Wyo. LEXIS 27 (Wyo.), reh'g denied, 28 Wyo. 282, 205 P. 1004, 1922 Wyo. LEXIS 28 (Wyo. 1922).

The treaty with Great Britain providing for inheritance of real property in one country by heirs of decedent in another will control and suspend the common law in force in Wyoming during such times, as all rights conferred thereby are in force or extended by the courts pursuant thereto. Bamforth v. Ihmsen, 28 Wyo. 282, 204 P. 345, 1922 Wyo. LEXIS 27 (Wyo.), reh'g denied, 28 Wyo. 282, 205 P. 1004, 1922 Wyo. LEXIS 28 (Wyo. 1922).

The word “territories” as used in treaty between the United States and Great Britain providing for inheritance of real property in each country by heirs living in other includes any area or locality under the dominion of the United States and is applicable to states. Bamforth v. Ihmsen, 28 Wyo. 282, 204 P. 345, 1922 Wyo. LEXIS 27 (Wyo.), reh'g denied, 28 Wyo. 282, 205 P. 1004, 1922 Wyo. LEXIS 28 (Wyo. 1922).

Under treaty with Great Britain providing that heirs living in one country might inherit real estate from decedent dying in the other country, such heirs to be allowed three years in which to sell the lands, all of their rights did not cease ipso facto at expiration of the three years, since the time might be prolonged, and a decree in favor of the heirs in view of the recent expiration of such period and pendency of action which might prevent a sale extended such time. Bamforth v. Ihmsen, 28 Wyo. 282, 204 P. 345, 1922 Wyo. LEXIS 27 (Wyo.), reh'g denied, 28 Wyo. 282, 205 P. 1004, 1922 Wyo. LEXIS 28 (Wyo. 1922).

Alien heir may convey before escheat action begun. —

Alien heir whose estate is subject to defeat by state's action to enforce escheat may dispose of property in good faith and convey title good against the world before commencement of escheat action. Dutton v. Donahue, 44 Wyo. 52, 8 P.2d 90, 1932 Wyo. LEXIS 4 (Wyo. 1932).

Applied in

Macaraeg v. Wilson, 749 P.2d 272, 1988 Wyo. LEXIS 11 (Wyo. 1988).

§ 2-4-106. Divorce not to affect children's rights.

Divorces of husband and wife do not affect the right of children to inherit their property.

History. C.L. 1876, ch. 42, § 8; R.S. 1887, § 2228; R.S. 1899, § 4863; C.S. 1910, § 5732; C.S. 1920, § 7007; Laws 1931, ch. 73, § 144; R.S. 1931, § 88-4006; C.S. 1945, § 6-2508; W.S. 1957, § 2-45; W.S. 1977, § 2-3-110 ; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Applied in

In re Estate of Ronald, 2014 WY 129, 2014 Wyo. LEXIS 146 (Oct. 14, 2014).

Am. Jur. 2d, ALR and C.J.S. references. —

Separation agreement as affecting right of inheritance, 34 ALR2d 1020, 34 ALR2d 1039.

§ 2-4-107. Determination of relationship of parent and child.

1. If for purposes of intestate succession, a relationship of parent and child shall be established to determine succession by, through or from a person:
   1. An adopted person is the child of an adopting parent for inheritance purposes, but the adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and that natural parent for inheritance purposes;
   2. An adopted person shall inherit from all other relatives of an adoptive parent as though he was the natural child of the adoptive parent and the relatives shall inherit from the adoptive person’s estate as if they were his relatives;
   3. In cases not covered by paragraph (i) of this subsection, a person born out of wedlock is a child of the mother. That person is also a child of the father, if the relationship of parent and child has been established under the Uniform Parentage Act, W.S. 14-2-401 through 14-2-907 .

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1; 2003, ch. 93, § 2; 2015, ch. 51, § 1.

The 2015 amendment, effective July 1, 2015, in (a)(i), deleted “and of natural parents” following “adopting parent,” added “for inheritance purposes” at the end; and made a related change.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Applied in

In re Estate of Ronald, 2014 WY 129, 2014 Wyo. LEXIS 146 (Oct. 14, 2014).

Only those persons who are heirs at law at the time of the death of an individual who dies intestate are entitled to succeed to his estate, and the second adoption of the plaintiff terminated the parent-child relationship so that he was not the adopted child of the decedent at the time of the decedent's death. Rist v. Taylor, 955 P.2d 436, 1998 Wyo. LEXIS 38 (Wyo. 1998).

Entitlement of siblings of adopted child. —

Where two brothers were adopted by one family and several siblings were not, and where one of the brothers died intestate without any children, a district court erred in determining that the biological siblings were entitled to an inheritance; the other adopted brother's daughter was the only true heir of the decedent. Shippey v. Rogers (In re Estate of Kirkpatrick), 2003 WY 125, 77 P.3d 404, 2003 Wyo. LEXIS 150 (Wyo. 2003).

§ 2-4-108. Advancements generally; exceptions; determination.

1. If a person dies intestate, property which he gave in his lifetime to an heir is treated as an advancement against the latter’s share of the estate only if declared in a contemporaneous writing by the decedent or acknowledged in writing by the heir to be an advancement. For this purpose the property advanced is valued as of the time the heir came into possession or enjoyment of the property. If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the intestate share to be received by the recipient’s issue, unless the declaration or acknowledgment provides otherwise.
2. The maintenance, education or supply of money to a minor, without any view to apportion or settlement in life, is not deemed an advancement under this section.
3. When any heir of the intestate receives in his lifetime any real or personal estate by way of advancement, and the other heirs desire it to be charged to him, the judge shall cite the parties to appear before him, shall hear proof upon the subject, and shall determine the amount of such advancement or advancements to be thus charged.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

Ademption through advancement can operate only if transfer were gift. If the transfer were otherwise, it would not be chargeable against a legacy as an advancement on it or a satisfaction of it, inasmuch as the legacy itself is a gift. In re Estate of Scott, 642 P.2d 1287, 1982 Wyo. LEXIS 319 (Wyo. 1982).

Am. Jur. 2d, ALR and C.J.S. references. —

Check as evidencing advancement, 74 ALR5th 491.

§ 2-4-201. Persons entitled to administer.

1. Administration of the estate of a person dying intestate shall be granted to one (1) or more of the persons mentioned in this section. The relatives of the deceased are entitled to administer only when they are entitled to succeed to his personal estate or some portion thereof. They are entitled to administer in the following order:
   1. The surviving husband or wife, or some competent person whom he or she may request to have appointed;
   2. The children;
   3. The father or mother;
   4. The brothers or sisters;
   5. Repealed by Laws 1987, ch. 129, §§ 1, 2.
   6. The grandchildren;
   7. The next of kin entitled to share in the distribution of the estate;
   8. The creditors;
   9. Any person legally competent.
2. If the decedent was a member of a partnership at the time of his death, the surviving partner shall not be appointed administrator of the estate if he is competent only by reason of paragraphs (a)(viii) and (ix) of this section.
3. No nonresident of the state of Wyoming shall be appointed as administrator unless a resident of Wyoming is appointed as coadministrator.

History. Laws 1890-91, ch. 70, art. 7, § 1; R.S. 1899, § 4635; C.S. 1910, § 5502; C.S. 1920, § 6775; R.S. 1931, § 88-1701; C.S. 1945, § 6-901; W.S. 1957, § 2-93; W.S. 1977, § 2-5-201; Laws 1979, ch. 142, § 2; 1980, ch. 43, § 1; 1987, ch. 129, §§ 1, 2.

Cross references. —

As to power of banks and trust companies to act as administrator or executor, see §§ 13-2-101 and 13-5-101 .

As to rights and liabilities of married persons generally, see §§ 20-1-201 , 20-1-202 .

Only relatives succeeding to property entitled to administer. —

The relatives of a decedent are entitled to administer only when they are entitled to succeed to some portion of the decedent's property. In re Estate of Johnson, 379 P.2d 824, 1963 Wyo. LEXIS 78 (Wyo. 1963).

And nominal bequest equivalent to disinheritance. —

A bequest of a nominal sum, often a dollar but sometimes more to a child or descendent of a testator, is, for all practical purposes, equivalent to complete disinheritance and is treated by the courts as such. In re Estate of Johnson, 379 P.2d 824, 1963 Wyo. LEXIS 78 (Wyo. 1963).

Possibility of inheritance on lapse of devise not sufficient. —

Relative of decedent not named as executor and expressly excluded from receiving anything under will is not entitled to appointment as administrator with will annexed on mere possibility that devises might lapse and enable him to receive portion as heir. Replogle v. Coolidge, 47 Wyo. 488, 41 P.2d 503, 1935 Wyo. LEXIS 4 (Wyo. 1935).

Right under section may only be exercised by petition. —

Under § 2-4-205 the right to administration given children of deceased by this section can be exercised only by filing of petition. 22 Wyo. 281, 138 P. 865, 1914 Wyo. LEXIS 10 .

Under this section and §§ 2-4-202 , 2-4-205 , 2-4-206 and 2-4-207 , where two children filed petitions, one filing opposition to that of the other, whose appointment the remaining children joined in requesting, the court, having found both competent, could only appoint one or the other, or both of the two petitioning, and appointment of one of the others was erroneous. 22 Wyo. 281, 138 P. 865, 1914 Wyo. LEXIS 10 .

Joining in petition of another waives right. —

Under this section and §§ 2-4-202 and 2-4-205 , when two of four children joined in asking appointment of one of the others, they thereby waived their own rights. 22 Wyo. 281, 138 P. 865, 1914 Wyo. LEXIS 10 .

Appointment of Personal Representative. —

Appointment of a personal representative for probate proceedings was separate and distinct from the appointment of a personal representative for purposes of pursuing a wrongful death action. While it was proper for the probate court to appoint a personal representative for handling matters associated with the decedent's estate, the appointment of a personal representative to pursue a wrongful death claim was to be made by the district court within that wrongful death action. Johnson v. Johnson (In re Estate of Johnson), 2010 WY 63, 231 P.3d 873, 2010 Wyo. LEXIS 65 (Wyo. 2010).

Applied in

In re Borton's Estate, 393 P.2d 808, 1964 Wyo. LEXIS 112 (Wyo. 1964).

Stated in

Peters v. Peters, 2001 WY 71, 29 P.3d 90, 2001 Wyo. LEXIS 86 (Wyo. 2001).

Law reviews. —

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part II,” VIII Land & Water L. Rev. 187 (1973).

Am. Jur. 2d, ALR and C.J.S. references. —

Creditor of estate as having adverse interest or position disqualifying him for appointment as personal representative, 18 ALR2d 633.

Effect of divorce, separation, desertion, unfaithfulness, and the like, upon right to administer upon estate of spouse, 34 ALR2d 876.

Separation agreements as barring right of husband or wife to administer deceased spouse's estate, 34 ALR2d 1020, 34 ALR2d 1039.

What constitutes “estate” of nonresident decedent within statute providing for local ancillary administration where decedent dies leaving estate in jurisdiction, 34 ALR2d 1270.

Potential liability of indemnity or liability insurer or other person to the estate, dependent upon establishment of claim against estate, as justifying grant of administration, 67 ALR2d 936.

Physical condition as affecting competency to act as executor or administrator, 47 ALR3d 1078.

§ 2-4-202. Appointment of administrator(s).

Where there are several persons equally entitled to administer, the court, or commissioner in vacation may grant letters to one (1) or more of them. When a creditor is claiming letters, the court, or commissioner in vacation, may at the request of another creditor grant letters to any other person legally competent.

History. Laws 1890-91, ch. 70, art. 7, § 2; R.S. 1899, § 4636; C.S. 1910, § 5503; C.S. 1920, § 6776; R.S. 1931, § 88-1702; C.S. 1945, § 6-902; W.S. 1957, § 2-94; W.S. 1977, § 2-5-202; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cross references. —

As to persons entitled to administer, see § 2-4-201 .

Cited in

In re Barrett's Estate, 22 Wyo. 281, 138 P. 865, 1914 Wyo. LEXIS 10 (1914).

Law reviews. —

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part II,” VIII Land & Water L. Rev. 187 (1973).

Am. Jur. 2d, ALR and C.J.S. references. —

Adverse interest or position as disqualification for appointment of administrator, executor, or other personal representative, 11 ALR4th 638.

§ 2-4-203. Persons incompetent to administer.

1. No person is competent or entitled to serve as administrator, who is:
   1. Under the age of majority;
   2. Not a bona fide resident of the state unless a resident of Wyoming is appointed coadministrator; or
   3. Adjudged by the court or commissioner incompetent to execute the duties of the trust.

History. Laws 1890-91, ch. 70, art. 7, § 3; R.S. 1899, § 4637; C.S. 1910, § 5504; C.S. 1920, § 6777; R.S. 1931, § 88-1703; C.S. 1945, § 6-903; W.S. 1957, § 2-95; W.S. 1977, § 2-5-203; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1; 2019, ch. 54, § 1.

The 2019 amendment, effective July 1, 2019, in (a)(iii), substituted "the court or commissioner incompetent to execute" for "the court, or commissioner in vacation, incompetent to execute."

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Administrator must be resident. —

The qualifications of an administrator are the same as those of an executor, with one exception. The administrator must be a bona fide resident of the state. Rice v. Tilton, 13 Wyo. 420, 80 P. 828, 1905 Wyo. LEXIS 18 (Wyo. 1905).

Only listed grounds make person incompetent. —

A person is not incompetent to serve as administrator with the will annexed unless he comes within one or more of the grounds of incompetency specified in this section. Rice v. Tilton, 13 Wyo. 420, 80 P. 828, 1905 Wyo. LEXIS 18 (Wyo. 1905).

Adverse claim made by person would not render him incompetent to be an administrator with the will annexed. The bond of the administrator with the will annexed affords ample protection to devisees, legatees and others interested in the estate. Rice v. Tilton, 13 Wyo. 420, 80 P. 828, 1905 Wyo. LEXIS 18 (Wyo. 1905).

Clerk of district court is not disqualified for appointment as an administrator. Bamforth v. Ihmsen, 28 Wyo. 282, 204 P. 345, 1922 Wyo. LEXIS 27 (Wyo.), reh'g denied, 28 Wyo. 282, 205 P. 1004, 1922 Wyo. LEXIS 28 (Wyo. 1922).

Cited in

Hecht v. Carey, 13 Wyo. 154, 78 P. 705, 1904 Wyo. LEXIS 32 (1904).

Law reviews. —

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part II,” 8 Land & Water L. Rev. 187 (1973).

Am. Jur. 2d, ALR and C.J.S. references. —

Right of surviving spouse, personally incompetent to serve as administrator because of being younger than age specified, to nominate administrator, 64 ALR2d 1152.

Construction and effect of statutory provision that no person is competent to act as executor or administrator whom court finds incompetent by reason of want of integrity, 73 ALR2d 458.

Eligibility of foreign corporation to appointment as executor or administrator, 26 ALR3d 1019.

Adverse interest or position as disqualification for appointment of administrator, executor, or other personal representative, 11 ALR4th 638.

§ 2-4-204. Married woman may be administratrix.

A married woman may be appointed and serve as administratrix the same in every respect as a femme sole. When an unmarried woman appointed administratrix marries her authority is not extinguished.

History. Laws 1890-91, ch. 70, art. 7, § 4; R.S. 1899, § 4638; C.S. 1910, § 5505; C.S. 1920, § 6778; Laws 1925, ch. 43, § 1; R.S. 1931, § 88-1704; C.S. 1945, § 6-904; W.S. 1957, § 2-96; W.S. 1977, § 2-5-204; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cross references. —

As to rights and liabilities of married persons generally, see §§ 20-1-201 , 20-1-202 .

§ 2-4-205. Petition for letters of administration; contents; effect of want of jurisdictional averments.

A petition for letters of administration shall be in writing, signed by the applicant or his counsel and filed with the clerk of the court. The petition shall state the facts essential to give the court jurisdiction of the case, and when known to the applicant, shall state the names, ages and residences of the heirs of the decedent, the value and character of the property and where the same is situated. If the jurisdictional facts existed but are not fully set forth in the petition, and are afterwards proved in the course of administration, the decree or order of administration and subsequent proceedings are not void on account of such want of jurisdictional averments.

History. Laws 1890-91, ch. 70, art. 7, § 5; R.S. 1899, § 4646; C.S. 1910, § 5513; C.S. 1920, § 6786; R.S. 1931, § 88-1901; C.S. 1945, § 6-905; W.S. 1957, § 2-97; W.S. 1977, § 2-5-205; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cross references. —

As to persons entitled to administer, see § 2-4-201 .

As to form of letters, see § 2-4-214 .

Cited in

In re Barrett's Estate, 22 Wyo. 281, 138 P. 865, 1914 Wyo. LEXIS 10 (1914).

Law reviews. —

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part II,” VIII Land & Water L. Rev. 187 (1973).

§ 2-4-206. Contest of petition; assertion of own rights to administer.

Any person interested may contest the petition by filing written opposition on the ground of the incompetency of the applicant, or may assert his own rights to the administration and pray that letters be issued to himself. In the latter case the contestant shall file a petition and submit evidence in support thereof, taken and reduced to writing before the clerk or commissioner of the court, and the court shall hear the two (2) petitions together.

History. Laws 1890-91, ch. 70, art. 7, § 8; R.S. 1899, § 4649; C.S. 1910, § 5516; C.S. 1920, § 6789; R.S. 1931, § 88-1903; C.S. 1945, § 6-907; W.S. 1957, § 2-99; W.S. 1977, § 2-5-207; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cross references. —

As to persons entitled to administer, see § 2-4-201 .

Interested person. —

Father was not an interested person within the meaning of the statute because his decedent son had a wife and three children. Peters v. Peters, 2001 WY 71, 29 P.3d 90, 2001 Wyo. LEXIS 86 (Wyo. 2001).

Wrongful death action defendant, the decedent's employer, did not have standing to challenge the appointment of the decedent's estate's personal representative because a wrongful death action defendant did not have a personal stake or tangible interest in that appointment, and could not intervene in probate estate action as a matter of right for the purpose of challenging the appointment of the personal representative Halliburton Energy Servs. v. Gunter, 2007 WY 151, 167 P.3d 645, 2007 Wyo. LEXIS 162 (Wyo. 2007).

Contestant's own qualifications to be shown. —

Person contesting appointment of another as administrator of an estate, who seeks appointment himself, must establish his own qualifications for the appointment. Replogle v. Coolidge, 47 Wyo. 488, 41 P.2d 503, 1935 Wyo. LEXIS 4 (Wyo. 1935).

Cited in

In re Barrett's Estate, 22 Wyo. 281, 138 P. 865, 1914 Wyo. LEXIS 10 (1914).

§ 2-4-207. Hearing of contest; issuance of letters.

After hearing the allegations and proofs of the parties, the court shall order the issuing of letters of administration to the party best entitled thereto.

History. Laws 1890-91, ch. 70, art. 7, § 9; R.S. 1899, § 4650; C.S. 1910, § 5517; C.S. 1920, § 6790; R.S. 1931, § 88-1904; C.S. 1945, § 6-908; W.S. 1957, § 2-100; W.S. 1977, § 2-5-208; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cross references. —

As to persons entitled to administer, see § 2-4-201 .

Contestant's own qualifications to be shown. —

Person contesting appointment of another as administrator of an estate, who seeks appointment himself, must establish his own qualifications for the appointment. Replogle v. Coolidge, 47 Wyo. 488, 41 P.2d 503, 1935 Wyo. LEXIS 4 (Wyo. 1935).

Cited in

In re Barrett's Estate, 22 Wyo. 281, 138 P. 865, 1914 Wyo. LEXIS 10 (1914).

§ 2-4-208. When letters granted.

Letters of administration may be granted at any time appointed for the hearing of the application, or at any time to which the hearing is continued or postponed.

History. Laws 1890-91, ch. 70, art. 7, § 6; R.S. 1899, § 4647; C.S. 1910, § 5514; C.S. 1920, § 6787; R.S. 1931, § 88-1902; C.S. 1945, § 6-906; W.S. 1957, § 2-98; W.S. 1977, § 2-5-206; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cross references. —

For provision that appointment shall lapse upon failure to qualify, and as to additional appointment, see § 2-3-104 .

Law reviews. —

See “The Curative Act and the Probate Code,” 3 Wyo. L.J. 204.

§ 2-4-209. Letters granted to any applicant if not contested.

Letters of administration shall be granted to any applicant, though it appears there are other persons having better rights to the administration, when those persons fail to appear either in person or by agent or attorney and claim the issuing of letters themselves.

History. Laws 1890-91, ch. 70, art. 7, § 10; R.S. 1899, § 4651; C.S. 1910, § 5518; C.S. 1920, § 6791; R.S. 1931, § 88-1905; C.S. 1945, § 6-909; W.S. 1957, § 2-101; W.S. 1977, § 2-5-209; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cross references. —

As to persons entitled to administer, see § 2-4-201 .

§ 2-4-210. Letters granted on request of person entitled.

Administration may be granted to one (1) or more competent persons, although not otherwise entitled to the same, at the written request of the person entitled, filed in court.

History. Laws 1890-91, ch. 70, art. 7, § 11; R.S. 1899, § 4652; C.S. 1910, § 5519; C.S. 1920, § 6792; R.S. 1931, § 88-1906; C.S. 1945, § 6-910; W.S. 1957, § 2-102; W.S. 1977, § 2-5-210; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

As to persons entitled to administer, see § 2-4-201 .

Cited in

In re Barrett's Estate, 22 Wyo. 281, 138 P. 865, 1914 Wyo. LEXIS 10 (1914).

§ 2-4-211. Creditors; right to apply for letters.

If letters testamentary or of administration have not been issued upon the request of any other person, any creditor of the decedent may apply for letters of administration at any time within two (2) years after the death of decedent, but not afterwards.

History. Laws 1933, ch. 32, § 1; 1945, ch. 69, § 1; C.S. 1945, § 6-915; W.S. 1957, § 2-103; W.S. 1977, § 2-5-211; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

As to time for filing or exhibiting claims and as to effect of failure to file, see § 2-7-703 .

Purpose of section is to give creditors an opportunity to protect their rights, but only within a limited time. Kuntz v. Kinne, 395 P.2d 286, 1964 Wyo. LEXIS 119 (Wyo. 1964).

Failure to timely file bars action. —

The failure to file claims against decedent's estate until almost four years after they arose caused this section to bar the action. Kuntz v. Kinne, 395 P.2d 286, 1964 Wyo. LEXIS 119 (Wyo. 1964).

Even though claims filed on same day decedent's administratrix appointed. —

See Kuntz v. Kinne, 395 P.2d 286, 1964 Wyo. LEXIS 119 (Wyo. 1964).

Applied in

State ex rel. State Bd. of Charities & Reform v. Bower, 362 P.2d 814, 1961 Wyo. LEXIS 100 (Wyo. 1961).

Law reviews. —

See “The Curative Act and the Probate Code,” 3 Wyo. L.J. 204.

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part II,” VIII Land & Water L. Rev. 187 (1973).

§ 2-4-212. Creditors; when claims barred; effect on liens.

If the letters are not issued within the time specified, all claims of creditors are forever barred and the purchasers of the property of the decedent from the heirs of the decedent shall take the title free from any claim of creditors. This act does not affect the lien upon encumbered property secured by valid mortgage or deed of trust in the case of real property, or by security agreement or interest valid under the Wyoming Uniform Commercial Code, but the secured creditor is not entitled to any deficiency judgment.

History. Laws 1933, ch. 32, § 2; 1945, ch. 69, § 2; C.S. 1945, § 6-916; W.S. 1957, § 2-104; W.S. 1977, § 2-5-212; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

As to property, conveyances and security transactions, see title 34.

For provisions of the Uniform Commercial Code, see title 34.1.

Meaning of “this act.” —

The term “this act” seems to refer to provisions originally enacted by ch. 32, Laws 1933, which presently appear as §§ 2-4-211 and 2-4-212 .

Section not deemed nonclaim statute. —

A nonclaim statute is one which bars a creditor's claim for failure to file within a time fixed by notice given in a probate proceeding, which is not the effect of this section. Kuntz v. Kinne, 395 P.2d 286, 1964 Wyo. LEXIS 119 (Wyo. 1964).

It is curative act validating conveyances by heirs. —

This section is a curative act in that it purports to give legal effect to conveyances from heirs to purchasers of estate properties in cases where letters have not been issued within two years from date of decedent's death. Kuntz v. Kinne, 395 P.2d 286, 1964 Wyo. LEXIS 119 (Wyo. 1964).

And also is special statute of limitation. —

See Kuntz v. Kinne, 395 P.2d 286, 1964 Wyo. LEXIS 119 (Wyo. 1964).

As a curative act, the words “shall (now “are”) be forever barred” may be unnecessary and surplusage; but as an act of limitation, they are essential, and their use indicates a positive legislative intent to bar creditors' claims after the lapse of two years following a debtor's death in cases where there has been no probate. Kuntz v. Kinne, 395 P.2d 286, 1964 Wyo. LEXIS 119 (Wyo. 1964).

Failure to timely file bars action. —

The failure to file claims against decedent's estate until almost four years after they arose caused an action to be barred. Kuntz v. Kinne, 395 P.2d 286, 1964 Wyo. LEXIS 119 (Wyo. 1964).

Even though claims filed on same day decedent's administratrix appointed. —

See Kuntz v. Kinne, 395 P.2d 286, 1964 Wyo. LEXIS 119 (Wyo. 1964).

Applied in

State ex rel. State Bd. of Charities & Reform v. Bower, 362 P.2d 814, 1961 Wyo. LEXIS 100 (Wyo. 1961).

Law reviews. —

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part II,” VIII Land & Water L. Rev. 187 (1973).

§ 2-4-213. Transcript of court minutes to be evidence of appointment.

A transcript from the minutes of the court showing the appointment of any person as administrator, together with the certificate of the clerk under his hand and the seal of the court, that the person has given bond and been qualified and that letters of administration have been issued to him and have not been revoked, shall have the same effect in evidence as the letters themselves.

History. Laws 1890-91, ch. 70, art. 10, § 7; R.S. 1899, § 4620; C.S. 1910, § 5480; C.S. 1920, § 6753; R.S. 1931, § 88-1105; C.S. 1945, § 6-1207; W.S. 1957, § 2-105; W.S. 1977, § 2-5-213; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

§ 2-4-214. Form of letters of administration.

Letters of administration shall be signed by the clerk under the seal of the court, and substantially in the following form:

State of Wyoming County of ss C. D. is hereby appointed administrator of the estate of A. B., deceased. Witness, G. H., clerk of the district court within and for the county of with the seal thereto affixed, the day of A. D. Clerk.

Click to view

History. Laws 1890-91, ch. 70, art. 6, § 3; R.S. 1899, § 4659; C.S. 1910, § 5526; C.S. 1920, § 6799; R.S. 1931, § 88-2103; C.S. 1945, § 6-803; W.S. 1957, § 2-92; W.S. 1977, § 2-5-103 ; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Law reviews. —

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part II,” VIII Land & Water L. Rev. 187 (1973).

§ 2-5-101. Elective share of property.

1. If a married person domiciled in this state shall by will deprive the surviving spouse of more than the elective share, as hereafter set forth, of the property which is subject to disposition under the will, reduced by funeral and administration expenses, homestead allowance, family allowances and exemption, and enforceable claims, the surviving spouse has a right of election to take an elective share of that property as follows:
   1. One-half (1/2) if there are no surviving issue of the decedent, or if the surviving spouse is also a parent of any of the surviving issue of the decedent; or
   2. One-fourth (1/4), if the surviving spouse is not the parent of any surviving issue of the decedent.
2. If a married person not domiciled in this state dies, the right, if any, of the surviving spouse to take an elective share in property in this state is governed by the law of the decedent’s domicile at death.
3. If the surviving spouse of a married person domiciled in this state dies or becomes incompetent within three (3) months after the will is admitted to probate or before being advised of the right of election as in W.S. 2-5-104 provided, a personal representative or guardian of the estate of the deceased or incompetent surviving spouse has the same right of election as the surviving spouse would have had if living or competent.
4. If the surviving spouse or his personal representative or guardian fails to exercise the right of election within the time provided in W.S. 2-5-105 , the will shall govern and control the distribution of the estate.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1; 2004, ch. 130, § 1.

The 2004 amendment, in (c), substituted “W.S. 2-5-104 ” for “W.S. 2-5-201.”

Laws 2004, ch. 130, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 19, 2004.

Conflicting legislation. —

Laws 2004, ch. 130, § 3, provides: “Any other act adopted by the Wyoming legislature during the same session in which this act is adopted shall be given precedence and shall prevail over the amendments in this act to the extent that such acts are in conflict with this act.”

Failure to advise. —

In light of the decedent's wife's acceptance of benefits under the will and the personal representative's failure to attempt to exercise the elective share, the omission of the advisement was not fundamental error which would cause the decree of distribution to exceed the probate court's jurisdiction. Jubie v. Dahlke (In re Estate of Dahlke), 2014 WY 29, 319 P.3d 116, 2014 Wyo. LEXIS 30 (Wyo. 2014).

Life estate with special power of appointment not part of estate. —

Where a decedent's interest in property was a life estate with a special power of appointment, the property is not included as part of the decedent's estate for the purpose of computing his surviving spouse's elective share. Reno v. Reno, 626 P.2d 552, 1981 Wyo. LEXIS 314 (Wyo. 1981).

Augmentation. —

Wyoming Supreme Court could not augment for purposes of the elective share the probate estate of the decedent with the property transferred to the trust prior to the decedent's death or with property transferred by will substitutes at the time of the decedent's death. Poland v. Nalee (In re Estate of George), 2011 WY 157, 265 P.3d 222, 2011 Wyo. LEXIS 162 (Wyo. 2011).

Cited in

Connely v. McColloch (In re Estate of Drwenski), 2004 WY 5, 83 P.3d 457, 2004 Wyo. LEXIS 9 (Wyo. 2004).

Am. Jur. 2d, ALR and C.J.S. references. —

Modern status: validity and effect of mortmain statutes, 6 ALR4th 603.

What constitutes transfer outside the will precluding surviving spouse from electing statutory share under Uniform Probate Code § 2-301, 11 ALR4th 1213.

Statutory or constitutional provision allowing widow but not widower to take against will and receive dower interests, allowances, homestead rights, or the like as denial of equal protection of law, 18 ALR4th 910.

Prior institution of annulment proceedings or other attack on validity of one's marriage as barring or estopping one from entitlement to property rights as surviving spouse, 31 ALR4th 1190.

Surviving spouse's right to marital share as affected by valid contract to convey by will, 85 ALR4th 418.

§ 2-5-102. Waiver of right of election and homestead allowance.

The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property and family allowance, or any of them, may be waived totally or partially before or after marriage, by a written contract, agreement or waiver signed by the party waiving, after fair disclosure. Unless it provides to the contrary a waiver of “all rights” (or equivalent language) in the property or estate of a present or prospective spouse, or a complete property settlement entered into after or in anticipation of separation or divorce, is a waiver of all rights to elective share, homestead allowance, exempt property and family allowance by each spouse in the property of the other and a renunciation by each of all benefits which would otherwise pass to one from the other by intestate succession or by virtue of the provisions of any will executed before the waiver or property settlement.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

Applied in

Briggs v. Wyoming Nat'l Bank, 836 P.2d 263, 1992 Wyo. LEXIS 81 (Wyo. 1992).

Am. Jur. 2d, ALR and C.J.S. references. —

Statutory or constitutional provision allowing widow but not widower to take against will and receive dower interests, allowances, homestead rights, or the like as denial of equal protection of law, 18 ALR4th 910.

§ 2-5-103. Homestead allowance, exempt property and family allowance; exception.

A surviving spouse is entitled to homestead allowance, exempt property and family allowance whether or not he elects to take an elective share and whether or not he renounces the benefits conferred upon him by the will except that, if it clearly appears from the will that a provision therein made for the surviving spouse is intended to be in lieu of these rights, he is not so entitled if he does not renounce the provisions made for him in the will.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

Am. Jur. 2d, ALR and C.J.S. references. —

Statutory or constitutional provision allowing widow but not widower to take against will and receive dower interests, allowances, homestead rights, or the like as denial of equal protection of law, 18 ALR4th 910.

§ 2-5-104. Duty of court to advise as to right of election.

1. If the surviving spouse has a right of election under W.S. 2-5-101 , then at any time after the filing of an inventory and not more than three (3) months after the admission of the will to probate, the court shall advise the surviving spouse of his right of election and shall explain fully the right and that in the event of the failure to exercise the right of election the will shall govern and control the distribution of the estate.
2. If the surviving spouse dies or becomes incompetent before the court has advised him of his right of election and has not, prior to death or incompetency, filed a waiver or renunciation of the right of election, the court shall advise the personal representative or guardian of the estate of the deceased or incompetent surviving spouse of the right of election as provided in subsection (a) of this section.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

Failure to advise. —

In light of the decedent's wife's acceptance of benefits under the will and the personal representative's failure to attempt to exercise the elective share, the omission of the advisement was not fundamental error which would cause the decree of distribution to exceed the probate court's jurisdiction. Jubie v. Dahlke (In re Estate of Dahlke), 2014 WY 29, 319 P.3d 116, 2014 Wyo. LEXIS 30 (Wyo. 2014).

§ 2-5-105. Time limit and procedure for elective share.

1. The surviving spouse, or a personal representative or guardian of the estate of a deceased or incompetent surviving spouse, may elect to take his elective share in the estate by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within three (3) months after the admission of the will to probate or within thirty (30) days after being advised of the right of election, whichever limitation last expires. In the event of a failure to file a petition within the foregoing time limitation the will governs and controls the distribution of the estate.
2. After the filing of a petition to elect to take an elective share, the court shall set the petition for hearing and the surviving spouse, or his personal representative or guardian, shall give notice by certified mail not less than twenty (20) days before the date of hearing of the time and place set for hearing to all persons whose interest will be adversely affected by the taking of the elective share.
3. After notice and hearing the court shall determine the right to the elective share and shall order its payment from assets of the estate. An assignment or allotment of assets by the personal representative to the elective share need not be made until the entry of a decree of distribution or such other time as may be designated by the court.
4. The surviving spouse or his personal representative or guardian may withdraw his demand for an elective share at any time before entry of a final determination by the court of the right to an elective share.
5. Any time after having been advised of the right of election, the surviving spouse or his personal representative or guardian may file with the court a renunciation or waiver of the right of election in which event the will shall govern and control the distribution of the estate.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

Failure to advise. —

In light of the decedent's wife's acceptance of benefits under the will and the personal representative's failure to attempt to exercise the elective share, the omission of the advisement was not fundamental error which would cause the decree of distribution to exceed the probate court's jurisdiction. Jubie v. Dahlke (In re Estate of Dahlke), 2014 WY 29, 319 P.3d 116, 2014 Wyo. LEXIS 30 (Wyo. 2014).

Am. Jur. 2d, ALR and C.J.S. references. —

Modern status: validity and effect of mortmain statutes, 6 ALR4th 603.

What constitutes transfer outside the will precluding surviving spouse from electing statutory share under Uniform Probate Code § 2-301, 11 ALR4th 1213.

§ 2-6-101. Right to make and dispose; exception.

Any person of legal age and sound mind may make a will and dispose of all of his property by will except what is sufficient to pay his debts, and subject to the rights of the surviving spouse and children.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

Am. Jur. 2d, ALR and C.J.S. references. —

Modern status: validity and effect of mortmain statutes, 6 ALR4th 603.

Alzheimer's disease as affecting testamentary capacity, 47 ALR5th 523.

§ 2-6-102. All property deemed passed; “property” defined.

A will is construed to pass all property which the testator owns at his death including property acquired after the execution of the will, unless a contrary intention is indicated by the will. “Property”, as used in this section, includes both real and personal property, or any interest therein, and means anything that may be the subject of ownership.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

Am. Jur. 2d, ALR and C.J.S. references. —

What passes under terms “furniture” or “furnishings” in will, 21 ALR4th 383.

Wills: what constitutes “bank,” “checking,” or “savings” account, within meaning of bequest, 31 ALR4th 688.

Proper disposition under will providing for allocation of express percentages or proportions amounting to more or less than whole or residuary estate, 35 ALR4th 788.

What passes under term “personal property” in will, 31 ALR5th 499.

§ 2-6-103. Property passed may be governed by trust instrument.

By a will signed and attested as provided in this article a testator may devise and bequeath real and personal estate to a trustee of a trust which is evidenced by a written instrument in existence when the will is made and which is identified in the will, even though the trust is subject to amendment, modification, revocation or termination. Unless the will provides otherwise the estate so devised and bequeathed is governed by the terms and provisions of the instrument creating the trust including any amendments or modifications in writing made before or after the making of the will and before the death of the testator.

History. Laws 1957, ch. 180, § 1; W.S. 1957, § 2-53; W.S. 1977, § 2-4-107 ; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cited in

Kerper v. Kerper, 780 P.2d 923, 1989 Wyo. LEXIS 253 (Wyo. 1989).

Law reviews. —

See note, “Incorporating Nontestamentary Documents Into a Will,” 15 Wyo. L.J. 58 (1960).

Am. Jur. 2d, ALR and C.J.S. references. —

Reservation of benefit to settlor for life, with power of revocation, as affecting validity of trust created by instrument not executed as a will, 32 ALR2d 1270.

“Pour-over” provisions from will to inter vivos trust, 12 ALR3d 56.

Validity of voting trust created by will, 77 ALR4th 1194.

§ 2-6-104. Law governing meaning and effect.

The meaning and legal effect of a disposition in a will is determined by the law of the state in which the will was executed, unless the will otherwise provides or unless the application of that law is contrary to the public policy of this state otherwise applicable to the disposition.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

Codicil executed in another state. —

When determining the validity of a codicil executed in another state by a Wyoming resident, Wyoming courts will apply the law of Wyoming unless the execution did not conform to the requirements of this title; only then will Wyoming courts be justified in turning to the law of the place where the codicil was executed. In re Estate of Zelikovitz, 923 P.2d 740, 1996 Wyo. LEXIS 126 (Wyo. 1996).

South Dakota statutes, similar to Wyoming's, applied. —

Where will was executed in South Dakota and South Dakota statutes concerning bequests to subscribing witnesses bore strong similarity to Wyoming provisions, the application of the South Dakota statutes did not violate the public policy of the state of In re Estate of Campbell, 673 P.2d 645, 1983 Wyo. LEXIS 398 (Wyo. 1983).

Quoted in

Douglas v. Newell, 719 P.2d 971, 1986 Wyo. LEXIS 555 (Wyo. 1986); In re Estate of Reed, 768 P.2d 566, 1989 Wyo. LEXIS 28 (Wyo. 1989).

§ 2-6-105. Rules of construction and intention.

The intention of a testator as expressed in his will controls the legal effect of his dispositions. The rules of construction expressed in the succeeding sections of this article apply unless a contrary intention is indicated by the will.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

Intent must govern. —

In considering a will, the intent of the testator must govern, and the court can only determine testator's intent from what the will says. Dainton v. Watson, 658 P.2d 79, 1983 Wyo. LEXIS 283 (Wyo. 1983).

Intent immaterial where no valid will. —

A court cannot consider the testator's intent in order to justify the probate of a recorded statement, which is not a valid will; intent is immaterial where there is no valid will. In re Estate of Reed, 672 P.2d 829, 1983 Wyo. LEXIS 389 (Wyo. 1983).

Will unambiguous. —

In a challenge to a will, the court held that the language of the will was apparent and unambiguously reflected the testatrix's intent that the stock held solely in her name, located in the safety deposit box, be distributed to the sister, and did not reflect an intention that the stocks were to pass under the residuary clause. Baker v. Enis (In re Estate of Stanton), 2005 WY 74, 114 P.3d 1246, 2005 Wyo. LEXIS 89 (Wyo. 2005).

Codicil not void where mistakenly refers to wrong date. —

A codicil was not void even though it referred to a will dated April 16, 1982, which will was not presented for probate. The probate court properly found that the April 16, 1982 date was a mistake on the part of the draftsman of the will and not that of the testator, a mistake which would have made a distribution other than in accordance with the expressed distributive intention of the testator as determined from the codicil itself. In re Estate of Croft, 713 P.2d 782, 1986 Wyo. LEXIS 478 (Wyo. 1986).

Quoted in

Douglas v. Newell, 719 P.2d 971, 1986 Wyo. LEXIS 555 (Wyo. 1986).

Cited in

Sanderson v. Bathrick (In re Estate of Seader), 2003 WY 119, 76 P.3d 1236, 2003 Wyo. LEXIS 144 (Wyo. 2003)

Law reviews. —

For case note, “Probate — In re Estate of Reed, 672 P.2d 829, 1983 Wyo. LEXIS 389 , 42 A.L.R.4th 167 (Wyo. 1983),” see XX Land & Water L. Rev. 279 (1985).

Am. Jur. 2d, ALR and C.J.S. references. —

Wills: gift to persons individually named but also described in terms of relationship to testator or another as class gift, 13 ALR4th 978.

What passes under terms “furniture” or “furnishings” in will, 21 ALR4th 383.

Proper disposition under will providing for allocation of express percentages or proportions amounting to more or less than whole or residuary estate, 35 ALR4th 788.

Effect of impossibility of performance of condition precedent to testamentary gift, 40 ALR4th 193.

Testamentary direction to devisee to pay stated sum of money to third party as creating charge or condition or as imposing personal liability on devisee for nonpayment, 54 ALR4th 1098.

Wills: effect of gift of specified percentage or share of estate (or residuary estate) to include specific property found to be of a greater value than share bequeathed, 63 ALR4th 1186.

Adoption as precluding testamentary gift under natural relative's will, 71 ALR4th 374.

What constitutes contest or attempt to defeat will within provision thereof forfeiting share of contesting beneficiary, 3 ALR5th 590.

Action for tortious interference with bequest as precluded by will contest remedy, 18 ALR5th 211.

Construction and application of “pay-all-taxes” provision in will, as including liability of nontestamentary property for inheritance and estate taxes, 56 ALR5th 133.

§ 2-6-106. Antilapse; deceased devisees; class gifts.

If a devisee who is a grandparent or a lineal descendent of a grandparent of the testator is dead at the time of execution of the will, fails to survive the testator, or is treated as if he predeceased the testator, the issue of the deceased devisee take in place of the deceased devisee and if they are all of the same degree of kinship to the devisee they take equally, but if of unequal degree then those of more remote degree take per stirpes. One who would have been a devisee under a class gift if he had survived the testator is treated as a devisee for purposes of this section whether his death occurred before or after the execution of the will.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

Construction with adoption statutes. —

Legislative intent is certainly clear that if a child is adopted, the child will then be a lineal descendent under the statutes, but Wyo. Stat. Ann. § 2-6-106 , the anti-lapse statute, just as clearly makes no provision for step-children or other persons who are not “legally adopted''; a lineal descendent is a lineal descendent, and in that regard, the words of the statute are not ambiguous, and the Wyoming Supreme Court cannot create an ambiguity within the statute by asking whether it should apply an equitable doctrine to broaden the class of persons identified by the statute. Sanderson v. Bathrick (In re Estate of Seader), 2003 WY 119, 76 P.3d 1236, 2003 Wyo. LEXIS 144 (Wyo. 2003).

Application. —

Based on the clear and unambiguous language of the last will and testament, there was no indication that it was the decedent's intention to have decedent's stepchild's children inherit the share the stepchild would have inherited had the stepchild survived the decedent, where the decedent never officially adopted the stepchild, and the Wyoming Supreme Court declined to apply the doctrine of equitable adoption to affect the distribution of a testate estate and to avoid the operation of the anti-lapse statute, Wyo. Stat. Ann. § 2-6-106 .Sanderson v. Bathrick (In re Estate of Seader), 2003 WY 119, 76 P.3d 1236, 2003 Wyo. LEXIS 144 (Wyo. 2003).

Applied in

In re Estate of Ronald, 2014 WY 129, 2014 Wyo. LEXIS 146 (Oct. 14, 2014).

§ 2-6-107. Failure of a testamentary provision.

1. Except as provided in W.S. 2-6-106 , if a devise other than a residuary devise fails for any reason, it becomes a part of the residue.
2. Except as provided in W.S. 2-6-106 , if the residue is devised to two (2) or more persons and the share of one (1) of the residuary devisees fails for any reason, his share passes to the residuary devisee, or to other residuary devisees in proportion to their interests in the residue.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

Construction. —

Legislative intent is certainly clear that if a child is adopted, the child will then be a lineal descendent under the statutes, but Wyo. Stat. Ann. § 2-6-106 , the anti-lapse statute, just as clearly makes no provision for step-children or other persons who are not “legally adopted”; a lineal descendent is a lineal descendent, and in that regard, the words of the statute are not ambiguous, and the Wyoming Supreme Court cannot create an ambiguity within the statute by asking whether it should apply an equitable doctrine to broaden the class of persons identified by the statute. Sanderson v. Bathrick (In re Estate of Seader), 2003 WY 119, 76 P.3d 1236, 2003 Wyo. LEXIS 144 (Wyo. 2003).

Application. —

Although the decedent often voiced decedent's intention to adopt a stepchild, a formal adoption was never carried out, and where the stepchild predeceased the decedent, the Wyoming Supreme Court declined to apply doctrine of equitable adoption, to avoid operation of the anti-lapse statute. Sanderson v. Bathrick (In re Estate of Seader), 2003 WY 119, 76 P.3d 1236, 2003 Wyo. LEXIS 144 (Wyo. 2003).

§ 2-6-108. Specific devise of securities; accessions; nonademption.

1. If the testator intended a specific devise of certain securities rather than the equivalent value thereof, the specific devisee is entitled only to:
   1. As much of the devised securities as are a part of the estate at time of the testator’s death;
   2. Any additional or other securities of the same entity owned by the testator by reason of action initiated by the entity excluding any acquired by exercise of purchase options;
   3. Securities of another entity owned by the testator as a result of a merger, consolidation, reorganization or other similar action initiated by the entity; and
   4. Any additional securities of the entity owned by the testator as a result of a plan of reinvestment.
2. Distributions prior to death with respect to a specifically devised security not provided for in subsection (a) of this section are not part of the specific devise.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

Am. Jur. 2d, ALR and C.J.S. references. —

Ademption or revocation of specific devise or bequest by guardian, committee, conservator or trustee of mentally or physically incompetent testator, 84 ALR4th 462.

§ 2-6-109. Nonademption of specific devises where sold by conservator; exception; rights of specific devisee.

1. If specifically devised property is sold by a conservator, or if a condemnation award or insurance proceeds are paid to a conservator as a result of a condemnation, fire or casualty, the specific devisee has the right to a general pecuniary devise equal to the net sale price, the condemnation award or the insurance proceeds. This subsection does not apply if after the sale, condemnation or casualty, it is adjudicated that the disability of the testator has ceased and the testator survives the adjudication by one (1) year. The right of the specific devisee under this subsection is reduced by any right he has under subsection (b) of this section.
2. A specific devisee has the right to the remaining specifically devised property and:
   1. Any balance of the purchase price together with any security interest owing from a purchaser to the testator at death by reason of sale of the property;
   2. Any amount of a condemnation award for the taking of the property unpaid at death;
   3. Any proceeds unpaid at death on a fire or casualty insurance on the property; and
   4. Property owned by testator at his death as a result of foreclosure, or obtained in lieu of foreclosure, of the security for a specifically devised obligation.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1; 2004, ch. 130, § 1.

The 2004 amendment, in (a), substituted “subsection (b) of this section” for “subsection (a).”

Laws 2004, ch. 130, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const.

Conflicting legislation. —

Laws 2004, ch. 130, § 3, provides: “Any other act adopted by the Wyoming legislature during the same session in which this act is adopted shall be given precedence and shall prevail over the amendments in this act to the extent that such acts are in conflict with this act.”

Contract balance under sales contract part of testatrix's “interest”in land. —

The contract balance remaining for ranch land sold under a 1980 installment sales contract was to be distributed in accord with a 1969 will provision under which the testatrix gave, devised and bequeathed “all of my interest and title” in the land. Douglas v. Newell, 719 P.2d 971, 1986 Wyo. LEXIS 555 (Wyo. 1986).

Quoted in

In re Estate of Newell, 765 P.2d 1353, 1988 Wyo. LEXIS 174 (Wyo. 1988).

§ 2-6-110. Exercise of power of appointment.

A general residuary clause in a will, or a will making general disposition of all of the testator’s property, does not exercise a power of appointment held by the testator unless specific reference is made to the power or there is some other indication of intention to include the property subject to the power.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

Am. Jur. 2d, ALR and C.J.S. references. —

Sufficiency of exercise of power specifying that it can be exercised only by specific or direct reference thereto, 15 ALR4th 810.

Validity of testamentary exercise of power of appointment by donee sane when will was executed but insane thereafter, 19 ALR4th 1002.

§ 2-6-111. Nonexoneration.

A specific devise passes subject to any mortgage, security, interest or lien existing at the date of death, without right of exoneration, regardless of a general directive in the will to pay debts.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

§ 2-6-112. Will to be in writing; number and competency of witnesses; signature of testator; subscribing witness not to benefit; exception.

Except as provided in the next section [§ 2-6-113 ], all wills to be valid shall be in writing, or typewritten, witnessed by two (2) competent witnesses and signed by the testator or by some person in his presence and by his express direction. If the witnesses are competent at the time of attesting the execution of the will, their subsequent incompetency shall not prevent the probate and allowance of the will. No subscribing witness to any will can derive any benefit therefrom unless there are two (2) disinterested and competent witnesses to the same, but if without a will the witness would be entitled to any portion of the testator’s estate, the witness may still receive the portion to the extent and value of the amount devised.

History. Laws 1882, ch. 107, § 4; R.S. 1887, § 2237; Laws 1895, ch. 20, § 1; R.S. 1899, § 4568; C.S. 1910, § 5397; C.S. 1920, § 6670; R.S. 1931, § 88-104; C.S. 1945, § 6-304; W.S. 1957, § 2-50; W.S. 1977, § 2-4-104 ; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

As to inapplicability of section to holographic wills, see § 2-6-113 .

Editor's notes. —

Section 2, ch. 20, Laws 1895, reads: “Any typewritten wills which may have been executed prior to the passage of this act shall be admitted to probate, notwithstanding the fact that they are typewritten, if in all other respects they are legally executed.” Prior to amendment by § 1, ch. 20, Laws 1895, this section merely provided that all wills must be in writing.

Right to make will controlled by legislature. —

The right to make a will did not exist at common law; thus, as a statutory right, it is subject to control by the legislature. In re Estate of Reed, 672 P.2d 829, 1983 Wyo. LEXIS 389 (Wyo. 1983).

Nuncupative (oral) wills are not valid. In re Estate of Boyd, 366 P.2d 336, 1961 Wyo. LEXIS 132 (Wyo. 1961).

All wills must be in writing, or typewritten, witnessed and signed, to be valid. Merrill v. State (In re Estate of Thornton), 21 Wyo. 421, 133 P. 134, 1913 Wyo. LEXIS 21 (Wyo. 1913).

They may be imprinted on typewriter with carbon paper. —

An instrument imprinted on a typewriter by the use of carbon paper and improperly called a “carbon copy,” bearing the signature of the testator and two subscribing witnesses, must be admitted to probate. Estate of Stringer, 80 Wyo. 389, 343 P.2d 508, 1959 Wyo. LEXIS 43 (Wyo.), modified, In re Estate of Stringer, 80 Wyo. 426, 345 P.2d 786, 1959 Wyo. LEXIS 56 (Wyo. 1959).

Tape recorded statement cannot be admitted to probate as a will. In re Estate of Reed, 672 P.2d 829, 1983 Wyo. LEXIS 389 (Wyo. 1983).

Section precludes consideration of intent not expressed in will. —

This section requiring wills to be in writing precludes ascribing to the testator any intention which he did not express in the instrument itself. In re Estate of Boyd, 366 P.2d 336, 1961 Wyo. LEXIS 132 (Wyo. 1961); Churchfield v. First Nat'l Bank, 418 P.2d 1001, 1966 Wyo. LEXIS 168 (Wyo. 1966); Percival v. Percival, 526 P.2d 342, 1974 Wyo. LEXIS 230 (Wyo. 1974).

Instrument must show intention of testator to give, devise or leave property. In re Estate of Boyd, 366 P.2d 336, 1961 Wyo. LEXIS 132 (Wyo. 1961).

And failure to describe recipient or property fatal. —

A valid disposition of property requires a definite subject and object, and if either is uncertain the defect is fatal. In re Estate of Boyd, 366 P.2d 336, 1961 Wyo. LEXIS 132 (Wyo. 1961).

A writing on hospital form wholly devoid of any description of the subject matter intended to be bequeathed, except for the nominal figure of $1.00, was properly denied probate. In re Estate of Boyd, 366 P.2d 336, 1961 Wyo. LEXIS 132 (Wyo. 1961).

Intent of testator must be ascertained alone from meaning of words used by him in the purported will. Churchfield v. First Nat'l Bank, 418 P.2d 1001, 1966 Wyo. LEXIS 168 (Wyo. 1966).

The intention of a testator is to be ascertained, if at all possible, from the meaning of all words used in the context of the entire will. Percival v. Percival, 526 P.2d 342, 1974 Wyo. LEXIS 230 (Wyo. 1974).

It may not be read into will. —

To ascertain the testator's intention, a court may not read into the will something which the deceased did not write therein; it can glean only decedent's purpose from what his testament says. Churchfield v. First Nat'l Bank, 418 P.2d 1001, 1966 Wyo. LEXIS 168 (Wyo. 1966); Percival v. Percival, 526 P.2d 342, 1974 Wyo. LEXIS 230 (Wyo. 1974).

Courts have no authority to add provisions to a will which the testator did not incorporate. Percival v. Percival, 526 P.2d 342, 1974 Wyo. LEXIS 230 (Wyo. 1974).

And may not assume testator would have given intention to unknown facts. —

If testator has omitted to provide for the state of affairs which actually has come to pass, a court cannot make the assumption that testator would probably have had a given intention if he had thought of the state of facts which actually existed and give effect to such probable intention. Churchfield v. First Nat'l Bank, 418 P.2d 1001, 1966 Wyo. LEXIS 168 (Wyo. 1966).

Based on the clear and unambiguous language of the last will and testament, there was no indication that it was the decedent’s intention to have decedent’'s stepchild’s children inherit the share the stepchild would have inherited had the stepchild survived the decedent, where the decedent never officially adopted the stepchild, and the Wyoming Supreme Court declined to apply the doctrine of equitable adoption to affect the distribution of a testate estate and to avoid the operation of the anti-lapse statute, Wyo. Stat. Ann. § 2-6-106 .Sanderson v. Bathrick (In re Estate of Seader), 2003 WY 119, 76 P.3d 1236, 2003 Wyo. LEXIS 144 (Wyo. 2003).

Will signed by testator and witnessed suffices. —

A will which is signed by the testator and witnessed by two witnesses at his request is sufficient. In re Estate of Carey, 504 P.2d 793, 1972 Wyo. LEXIS 291 (Wyo. 1972).

Witnesses need not know instrument they are signing and attesting is a will. In re Estate of Carey, 504 P.2d 793, 1972 Wyo. LEXIS 291 (Wyo. 1972).

Publication not required. —

This section does not require publication in express terms, and publication is not necessary. In re Estate of Carey, 504 P.2d 793, 1972 Wyo. LEXIS 291 (Wyo. 1972).

Attorney as witness. —

Fact that attorney who drew will and was one of subscribing witnesses was also attorney for person named as executor and trustee, and later appeared as attorney for executor, trustee and contestee in probate proceedings, did not disqualify him and preclude his testifying in support of probate of the will. Lane's Estate, 50 Wyo. 119, 58 P.2d 415, 1936 Wyo. LEXIS 5 (Wyo. 1936).

Notary as witness. —

A notary public who signs a will in his or her capacity as a notary may also serve as a witness to the execution of the will. In re Estate of Zelikovitz, 923 P.2d 740, 1996 Wyo. LEXIS 126 (Wyo. 1996).

Applied in

In re Estate of Altman, 650 P.2d 277, 1982 Wyo. LEXIS 377 (Wyo. 1982).

Quoted in

In re Estate of Campbell, 673 P.2d 645, 1983 Wyo. LEXIS 398 (Wyo. 1983); In re Estate of Croft, 713 P.2d 782, 1986 Wyo. LEXIS 478 (Wyo. 1986).

Cited in

Seeley v. Estate of Seeley, 627 P.2d 1357, 1981 Wyo. LEXIS 335 (Wyo. 1981); Russell v. Sullivan, 2012 WY 20, 270 P.3d 677, 2012 Wyo. LEXIS 22 (Feb. 14, 2012).

Law reviews. —

See “Implied Revocation of Wills in Wyoming,” 10 Wyo. L.J. 112.

For case note, “Probate — The Enforcement of Unwritten Wills, In re Estate of Reed, 672 P.2d 829, 1983 Wyo. LEXIS 389 , 42 A.L.R.4th 167 (Wyo. 1983),” see XX Land & Water L. Rev. 279 (1985).

Am. Jur. 2d, ALR and C.J.S. references. —

Codicil as validating will or codicil which was invalid or inoperative at time of its purported execution, Hurley v. Blankinship, 313 Ky. 49, 229 S.W.2d 963, 1950 Ky. LEXIS 773 (Ky. 1950).

Witness to nuncupative will as entitled to take as beneficiary thereunder, 28 ALR2d 796.

Validity of will written on disconnected sheets, 38 ALR2d 477.

Letter as a will or codicil, 40 ALR2d 698.

“Attestation” or “witnessing” of will, required by statute, as including witnesses' subscription, 45 ALR2d 1365.

Failure of attesting witness to write or state place of residence as affecting will, 55 ALR2d 1053.

Sufficiency of publication of will, 60 ALR2d 124.

Affixing signatures of attesting witnesses before testator signs, 91 ALR2d 737.

Validity of a will signed by testator with the assistance of another, 98 ALR2d 824.

Mark, stamp, or symbol, or partial or abbreviated signature, validity of wills signed by, 98 ALR2d 841.

Sufficiency of testator's acknowledgment of signature from his conduct and the surrounding circumstances, 7 ALR3d 317.

Place of signature of attesting witnesses, 17 ALR3d 705.

Competency, as witness attesting will, of attorney named therein as executor's attorney, 30 ALR3d 1361.

Testator's illiteracy or lack of knowledge of language in which will is written as affecting its validity, 37 ALR3d 889.

When is will signed at “end” or “foot” as required by statute, 44 ALR3d 701.

Necessity that attesting witness realize instrument was intended as will, 71 ALR3d 877.

Fingerprints as signature, 71 ALR3d 1072.

Electronic tape recording as will, 42 ALR4th 176.

Payable-on-death savings account or certificate of deposit as will, 50 ALR4th 272.

§ 2-6-113. Holographic will.

A will which does not comply with W.S. 2-6-112 is valid as an holographic will, whether or not witnessed, if it is entirely in the handwriting of the testator and signed by the hand of the testator himself.

History. Laws 1895, ch. 20, § 3; C.S. 1920, § 6670; R.S. 1931, § 88-104; C.S. 1945, § 6-305; W.S. 1957, § 2-54; W.S. 1977, § 2-4-108 ; Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

Holographic will, containing third person's handwriting, madewith decedent's consent, denied probate admission. —

The court was correct in denying admission of a holographic will into probate, since it was not entirely in the handwriting of the decedent, but contained several notations in the handwriting of a third person, a trust officer, made with the knowledge and consent of the decedent. Whether the notations changed the disposition scheme of the will in a material way would have required construction of the will, which the court did not undertake. In re Estate of Dobson, 708 P.2d 422, 1985 Wyo. LEXIS 595 (Wyo. 1985).

Cited in

Seeley v. Estate of Seeley, 627 P.2d 1357, 1981 Wyo. LEXIS 335 (Wyo. 1981); In re Estate of Zelikovitz, 923 P.2d 740, 1996 Wyo. LEXIS 126 (Wyo. 1996).

Law reviews. —

For case note, “Probate — The Enforcement of Unwritten Wills, In re Estate of Reed, 672 P.2d 829, 1983 Wyo. LEXIS 389 , 42 A.L.R.4th 167 (Wyo. 1983),” see XX Land & Water L. Rev. 279 (1985).

Am. Jur. 2d, ALR and C.J.S. references. —

Requirement that holographic will, or its material provisions, be entirely in testator's handwriting as affected by appearance of some printed or written matter not in testator's handwriting, 37 ALR4th 528.

§ 2-6-114. Self-proving wills.

1. Any will may be simultaneously executed, attested and made self-proven, by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state where execution occurs and evidenced by the officer’s certificate under official seal, in form and content substantially as follows:

   I, , the testator, sign my name to this instrument this day of , (year), and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my last will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am an adult person, of sound mind, and under no constraint or undue influence. Testator We, , the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the testator signs and executes this instrument as his last will and that he signs it willingly (or willingly directs another to sign for him), and that he executes it as his free and voluntary act for the purposes therein expressed, and that each of us, in the presence and hearing of the testator, hereby signs this will as witnesses to the testator's signature and that to the best of our knowledge the testator is an adult person, of sound mind, and under no constraint or undue influence. Witness Witness STATE OF WYOMING COUNTY OF ss Subscribed, sworn to and acknowledged before me by , the testator, and subscribed and sworn to before me by and , witnesses, this day of (SEAL) (Signed) (Official Capacity of Officer)

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2. The execution of the acknowledgment by the testator and the affidavits of the witnesses as provided for in this section shall be sufficient to satisfy the requirements of the signing of the will by the testator and the witnesses under W.S. 2-6-112 .
3. An attested will may at the time of its execution or at any subsequent date be made self-proven by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of this state or under the laws of the state where execution occurs, and evidenced by the officer’s certificate under official seal, attached or annexed to the will in form and contents substantially as follows:

   STATE OF WYOMING COUNTY OF ss We, , , and, the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the testator signed and executed the instrument as his last will and that he signed willingly or willingly directed another to sign for him, and that he executed it as his free and voluntary act for the purposes therein expressed; and that each of the witnesses, in the presence and hearing of the testator, signed the will as witness and that to the best of our knowledge the testator was at that time an adult person, of sound mind and under no constraint or undue influence. Testator Witness Witness Subscribed, sworn to and acknowledged before me by , the testator, and subscribed and sworn to before me by and , witnesses, this day of , (SEAL) (Signed) (Official Capacity of Officer)

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History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1; 1999, ch. 150, § 2.

Cited in

In re Estate of Zelikovitz, 923 P.2d 740, 1996 Wyo. LEXIS 126 (Wyo. 1996).

Am. Jur. 2d, ALR and C.J.S. references. —

Proper execution of self-proving affidavit as validating or otherwise curing defect in execution of will itself, 1 ALR5th 965.

§ 2-6-115. Who may witness.

Any person generally competent to be a witness may act as a witness to a will.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

§ 2-6-116. Validity of execution.

A written will is valid if executed in compliance with W.S. 2-6-112 or 2-6-113 or if its execution complies with the law at the time of execution of the place where the will is executed, or of the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode or is a national.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

Codicil executed in another state. —

When determining the validity of a codicil executed in another state by a Wyoming resident, Wyoming courts will apply the law of Wyoming unless the execution did not conform to the requirements of this title; only then will Wyoming courts be justified in turning to the law of the place where the codicil was executed. In re Estate of Zelikovitz, 923 P.2d 740, 1996 Wyo. LEXIS 126 (Wyo. 1996).

Cited in

Seeley v. Estate of Seeley, 627 P.2d 1357, 1981 Wyo. LEXIS 335 (Wyo. 1981).

Am. Jur. 2d, ALR and C.J.S. references. —

Proper execution of self-proving affidavit as validating or otherwise curing defect in execution of will itself, 1 ALR5th 965.

§ 2-6-117. Revocation by writing or by act.

1. A will or any part thereof is revoked:
   1. By a subsequent will which revokes the prior will or part expressly or by inconsistence; or
   2. By being burned, torn, cancelled, obliterated or destroyed with the intent and for the purpose of revoking it by the testator or by another person in his presence and by his direction.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Partial revocation occurs if a part of the will is cancelled by the testator in an authorized fashion; provided that the remainder, standing alone, is an understandable testamentary expression and the alteration does not result in a new dispositive scheme. Seeley v. Estate of Seeley, 627 P.2d 1357, 1981 Wyo. LEXIS 335 (Wyo. 1981).

Holographic wills may be partially revoked by the testator as long as the remainder expresses an intelligible testamentary expression, and the revocation does not create a new scheme of disposition. Seeley v. Estate of Seeley, 627 P.2d 1357, 1981 Wyo. LEXIS 335 (Wyo. 1981).

Where two parties agreed to make mutual wills, each promising to dispose of his property to the other or, if the other be dead, to certain third persons, and one of the parties performs by leaving his property to the other, the intended devisees and legatees are entitled to enforce their rights as beneficiaries under the agreement. The contracting party who survives becomes estopped from making any other or different disposition of the property, and his obligations under the agreement become absolutely irrevocable and enforceable against him, at least where he avails himself of the provisions of the decedent's will in his favor and accepts substantial benefits thereunder. Kerper v. Kerper, 780 P.2d 923, 1989 Wyo. LEXIS 253 (Wyo. 1989).

Am. Jur. 2d, ALR and C.J.S. references. —

Establishment and effect, after death of one of the makers of joint, mutual, or reciprocal will, of agreement not to revoke will, 17 ALR4th 167.

Revocation of prior will by revocation clause in lost will or other lost instrument, 31 ALR4th 306.

Sufficiency of evidence of nonrevocation of lost will not shown to have been inaccessible to testator — modern cases, 70 ALR4th 323.

Ademption or revocation of specific devise or bequest by guardian, committee, conservator or trustee of mentally or physically incompetent testator, 84 ALR4th 462.

Sufficiency of evidence of nonrevocation of lost will where codicil survives, 84 ALR4th 531.

§ 2-6-118. Revocation by divorce or annulment; effect; revival; other changes excluded.

If after executing a will the testator is divorced or his marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, conservator or guardian, unless the will expressly provides otherwise. Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent, and other provisions conferring some power or office on the former spouse are interpreted as if the spouse failed to survive the decedent. If provisions are revoked solely by this section, they are revived by testator’s remarriage to the former spouse. For purposes of this section, divorce or annulment means any divorce or annulment which would exclude the spouse as a surviving spouse. A decree of separation which does not terminate the status of husband and wife is not a divorce for purposes of this section. No change of circumstances other than as described in this section revokes a will.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

Am. Jur. 2d, ALR and C.J.S. references. —

Sufficiency of provision for, or reference to, prospective spouse to avoid lapse or revocation of will by subsequent marriage, 38 ALR4th 117.

§ 2-6-119. Duty of custodian to deliver will; failure to comply; order to third persons.

1. Every custodian of a will, within ten (10) days after receipt of information that the maker thereof is dead, shall deliver the same to the clerk of the district court having jurisdiction of the estate or to the executor named therein. A failure to comply with the provisions of this section makes the person failing responsible for all damages sustained by anyone injured thereby.
2. If it is brought to the attention of the court that any will is in the possession of a third person, and the court or the commissioner is satisfied that the information is correct, an order shall be issued and served upon the person having possession of the will, and if he neglects or refuses to produce it in obedience to the order he may be punished by the court for contempt.

History. Laws 1890-91, ch. 70, art. 2, §§ 3, 7; R.S. 1899, §§ 4571, 4575; C.S. 1910, §§ 5409, 5413; C.S. 1920, §§ 6681, 6685; R.S. 1931, §§ 88-209, 88-213; C.S. 1945, §§ 6-203, 6-207; W.S. 1957, §§ 2-57, 2-61; W.S. 1977, §§ 2-4-201 , 2-4-205 ; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1; 2019, ch. 54, § 1.

Cross references. —

As to lost or destroyed wills, see § 2-6-207 .

As to citation to persons suspected of having in possession a lost will, etc., see § 2-7-412 .

The 2019 amendment, effective July 1, 2019, in (b), substituted "the commissioner is satisfied" for "the commissioner in vacation is satisfied."

Stated in

In re Estate of Croft, 713 P.2d 782, 1986 Wyo. LEXIS 478 (Wyo. 1986).

Am. Jur. 2d, ALR and C.J.S. references. —

Relative rights to real property as between purchasers from or through decedent's heirs and devisees under will subsequently sought to be established as affected by concealment or withholding of will, 22 ALR2d 1107.

Probate where two or more testamentary documents, bearing the same date or undated, are proffered, 17 ALR3d 603.

What circumstances excuse failure to submit will for probate within time limit set by statute, 17 ALR3d 1361.

Challenge in collateral proceeding to decree admitting will to probate, on ground of fraud inducing complainant not to resist probate, 84 ALR3d 1119.

§ 2-6-120. Notification of executor; disposition where no petition filed.

Upon receipt of a will for filing, with information that the maker thereof is dead, the clerk shall notify the party, if any, named as executor of the will, and as many of the distributees named therein as may be readily located. If no action pursuant to W.S. 2-6-121 , 2-6-122 or 2-6-201 is taken by any party within thirty (30) days after the giving of such notice, the clerk shall report the matter to the court and the court may make orders as it deems appropriate for the disposition of the will.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1; 1981, ch. 151, § 2.

§ 2-6-121. Petition and procedure for filing of will without probate or administration.

1. Concurrently with the filing with the clerk of a will of a deceased person, or at any time thereafter, the executor or any distributee named therein may file a sworn petition for filing of the will without probate or administration. The petition shall show:
   1. The date and place of death of the decedent, and county and state of last residence of the decedent;
   2. The names, ages and residences of the heirs and devisees of the decedent, so far as known to the petitioner;
   3. That a true copy of the will and a true copy of the petition have been mailed to each of the heirs and devisees; and
   4. That, pending possible subsequent action, the petition and the will are to be filed and indexed by the clerk, without further proceedings.
2. The clerk shall receive, file and index the petition, and annex the will thereto, and maintain same as part of the permanent files. No filing fee shall be charged.
3. No proceedings under this section may be commenced after the filing of a petition under W.S. 2-6-122 or 2-6-201 , nor after the entry of an order by the court pursuant to W.S. 2-6-120 making other provisions for the disposition of the will.

History. Laws 1981, ch. 151, § 1.

§ 2-6-122. Petition and procedure for filing and probate of will without administration.

1. Concurrently with the filing with the clerk of a will of a deceased person, or at any time thereafter prior to the filing of a petition pursuant to W.S. 2-6-201 and prior to the entry of any order by the court pursuant to W.S. 2-6-120 making other provisions for the disposition of the will, any party who would be entitled to letters testamentary under the provisions of W.S. 2-6-208 may file with the clerk a sworn petition for probate of will without administration. The petition shall show:
   1. The date and place of death of the decedent, and county and state of last residence of the decedent;
   2. The names, ages and residences of the heirs and devisees of the decedent;
   3. That a true copy of the will and a true copy of the petition have been mailed to each of the heirs and devisees; and
   4. That the petition prays for probate of the will, without administration.
2. A filing fee for the petition shall be charged, equal to the minimum fee applicable to proceedings under W.S. 2-6-203 .
3. Upon the filing of the petition, proceedings shall be had as provided in W.S. 2-6-203 through 2-6-206 , and order shall issue and notices be given as provided in W.S. 2-6-209 if the will is found entitled to probate, except that the order shall not include the appointment of an executor, but recite that the will is admitted to probate without administration.
4. After the entry of the order admitting the will to probate, the petitioner shall, at his own expense, cause to be published once a week for three (3) consecutive weeks in a daily or weekly newspaper of general circulation in the county in which the probate was granted a notice in substantially the following form:

   State of Wyoming County of In the Matter of the Estate of , Deceased. In the District Court Judicial District Probate No. Notice of Proof of Will Without Administration TO ALL PERSONS INTERESTED IN SAID ESTATE: You are hereby notified that on the day of , (year), the Last Will and Testament of Decedent was admitted to probate by the above named court and there will be no present administration of the estate. Any action to set aside the Will shall be filed in the Court within three (3) months from the date of the first publication of this notice, or thereafter be forever barred. Dated , (year). Proponent PUBLISH: (once a week for three (3) consecutive weeks)

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5. The provisions of W.S. 2-6-301 through 2-6-306 apply to proceedings under this section.
6. In the event administration of the estate is desired at any later date, any party designated in W.S. 2-6-208 , in the order of preference set forth therein, may petition the court for the issuance of letters testamentary.

History. Laws 1981, ch. 151, § 1; 1999, ch. 150, § 2.

§ 2-6-123. Filing of will, with or without probate not to bar collection by affidavit.

No proceedings pursuant to W.S. 2-6-120 through 2-6-122 shall bar any proceedings pursuant to W.S. 2-1-201 through 2-1-203 .

History. Laws 1981, ch. 151, § 1.

§ 2-6-124. Written statement referred to in will disposing of certain personal property.

1. A will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money, evidences of indebtedness, documents of title, securities and property used in trade or business. To be admissible under this section as evidence of the intended disposition, the writing shall:
   1. Be dated;
   2. Be in the handwriting of the testator or signed by him; and
   3. Include a description of the items and devisees with reasonable certainty.
2. The written statement or list may be prepared before or after execution of the will, and may be altered by the testator after its preparation which alteration shall be signed and dated by the testator.
3. The written statement or list may be a writing which has no significance apart from the effect upon the disposition made by the will.

History. Laws 1987, ch. 147, § 1.

§ 2-6-201. Contents of petition; defect in jurisdictional statement inconsequential.

1. A petition for the probate of a will shall show:
   1. The jurisdictional facts;
   2. Whether the person named as executor consents to act, or renounces his right to letters testamentary;
   3. The names, ages and residences of the heirs and devisees of the decedent, so far as known to the petitioner;
   4. The probable value and character of the property of the estate;
   5. The name of the person for whom letters testamentary are prayed.
2. No defect of form or in the statement of jurisdictional facts actually existing shall make void the probate of a will.

History. Laws 1890-91, ch. 70, art. 2, § 5; R.S. 1899, § 4583; C.S. 1910, § 5411; C.S. 1920, § 6683; R.S. 1931, § 88-211; C.S. 1945, § 6-205; W.S. 1957, § 2-59; W.S. 1977, § 2-4-203 ; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Omission of heir not deemed jurisdictional. —

Fact that contestant was not named as an heir in the petition for probate, and no copy of notice of the time and place of probate was sent to her, was held not jurisdictional, and contestant had day in court with full opportunity to present claims for consideration. Lane's Estate, 50 Wyo. 119, 58 P.2d 415, 1936 Wyo. LEXIS 5 (Wyo. 1936).

Cited in

Gaston v. Wagner (In re Estate of Meeker), 2017 WY 75, 397 P.3d 183, 2017 Wyo. LEXIS 75 (Wyo. 2017).

Law reviews. —

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part II,” VIII Land & Water L. Rev. 187 (1973).

§ 2-6-202. Failure of executor to petition; appointment of administrator.

If the person named in a will as executor, for thirty (30) days after he has knowledge of the death of the testator and that he is named as executor, fails to petition the proper court for probate of the will and that letters testamentary be issued to him, he may be held to have renounced his right to letters and the court may appoint any other competent person administrator unless good cause for delay is shown.

History. Laws 1890-91, ch. 70, art. 2, § 6; R.S. 1899, § 4574; C.S. 1910, § 5412; C.S. 1920, § 6684; R.S. 1931, § 88-212; C.S. 1945, § 6-206; W.S. 1957, § 2-60; W.S. 1977, § 2-4-204 ; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Section applies to both foreign and domestic wills. Rice v. Tilton, 13 Wyo. 420, 80 P. 828, 1905 Wyo. LEXIS 18 (Wyo. 1905).

And failure to apply forfeits preference given persons named in foreign will. —

The preference as to letters of administration given by this section to nonresidents named as executors is forfeited by failing to apply for probate of a foreign will and for letters testamentary within the time fixed by this section. Rice v. Tilton, 13 Wyo. 420, 80 P. 828, 1905 Wyo. LEXIS 18 (Wyo. 1905).

In which case appointment becomes matter of court's discretion. —

Where person named in will does not apply for letters of administration within time fixed by statute, he waives the right, and thereafter it is a matter of discretion of the court as to his appointment or appointment of some other person. Rice v. Tilton, 13 Wyo. 420, 80 P. 828, 1905 Wyo. LEXIS 18 (Wyo. 1905).

Persons designated by the testator to be executors are not rendered incompetent by their delay, but simply lose their preference right, and it then becomes at least a matter for the exercise of sound discretion by the court; and, unless there is an abuse of the discretion by the judge of the court, his judgment should not be disturbed. Rice v. Tilton, 13 Wyo. 420, 80 P. 828, 1905 Wyo. LEXIS 18 (Wyo. 1905).

Contest in another state may excuse delay. —

The fact of the application having been made in another state, and the probate of the will being there contested, is probably a sufficient showing of good cause for not applying to the court of this state up to the time of the final decision in that state. Rice v. Tilton, 13 Wyo. 420, 80 P. 828, 1905 Wyo. LEXIS 18 (Wyo. 1905) (good cause for delay not shown).

But ignorance of local law and bad legal advice do not. —

The fact that the persons named as executors in the will of a nonresident were not familiar with the laws of this state, or that they were ill-advised by their out-of-state attorney, was not good cause for delay. Rice v. Tilton, 13 Wyo. 420, 80 P. 828, 1905 Wyo. LEXIS 18 (Wyo. 1905).

Cited in

Gaston v. Wagner (In re Estate of Meeker), 2017 WY 75, 397 P.3d 183, 2017 Wyo. LEXIS 75 (Wyo. 2017).

Am. Jur. 2d, ALR and C.J.S. references. —

Loss of right to be appointed executor by delay in presenting will for probate or in seeking letters testamentary, 45 ALR2d 916.

§ 2-6-203. Hearing upon petition; notice not required.

1. Upon the filing of a petition for probate of a will, the court or the clerk may hear it forthwith or at such time and place as the court or clerk may direct, with or without requiring notice, and upon proof of due execution of the will, admit the same to probate.
2. Notice is not required and there shall be no delay in the hearing, unless good cause appears.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

§ 2-6-204. Proof; self-proving will.

A will executed in compliance with W.S. 2-6-114 shall be probated without further proof.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

§ 2-6-205. Proof; wills not self-proving.

1. If the will is not self-proving, proof of a will may be made by the oral or written testimony of one or more of the subscribing witnesses to the will. If the testimony is in writing, it shall be substantially in the following form, executed and sworn to contemporaneously with the execution of the will or at any time thereafter, whether before or after the date of death of the testator:

   In the District Court of Wyoming In and for County In the Matter of the Estate ofDeceasedState ofCounty Probate No. Testimony of Subscribing ss Witness on Probate of Will I, , being first duly sworn, state: I reside in the County of , State of ; I knew the testator on the day of , (year), the date of the instrument, the original or exact reproduction of which is attached hereto, now shown to me, and purporting to be the last will and testament of the said ; I am one of the subscribing witnesses to said instrument; and on the said date of said instrument, I knew , the other subscribing witness; and said instrument was exhibited to me and to the other subscribing witness by the testator, who declared the same to be his last will and testament, and was signed by the testator at , in the County of , State of , on the date shown in said instrument, in the presence of myself and the other subscribing witness; and the other subscribing witness and I then and there, at the request of the testator, in the presence of said testator and in the presence of each other, subscribed our names thereto as witnesses. Name of witness Address Subscribed and sworn to before me this day of , (year). Notary Public in and for County of State of (SEAL)

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2. If it is desired to prove the execution of the will by deposition rather than by use of the affidavit form provided in subsection (a) of this section, upon application the clerk shall issue a commission to some officer authorized by the law of this state to take depositions, with the will annexed, and the officer taking the deposition shall exhibit it to the witness for identification, and, when identified by him, shall mark it as “Exhibit  . . . . .  ” and cause the witness to connect his identification with it as such exhibit. Before sending out the commission the clerk shall make and retain in his office a true copy of the will.
3. If all of the witnesses are deceased or otherwise not available, it is permissible to prove the will by the sworn testimony of two (2) credible disinterested witnesses that the signature to the will is in the handwriting of the person whose will it purports to be, and that the signatures of the witnesses are in the handwriting of the witnesses, or it may be proved by other sufficient evidence of the execution of the will.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1; 1999, ch. 150, § 2.

Quoted in

In re Estate of Altman, 650 P.2d 277, 1982 Wyo. LEXIS 377 (Wyo. 1982).

§ 2-6-206. Proof; holographic wills.

An holographic will may be proved the same as any other private writing.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

Applied in

Seeley v. Estate of Seeley, 627 P.2d 1357, 1981 Wyo. LEXIS 335 (Wyo. 1981).

§ 2-6-207. Proof; lost or destroyed will; court may restrain personal representatives pending disposition.

1. Whenever any will is lost or destroyed, the district court shall take proof of the execution and validity thereof to establish the same. All the testimony shall be reduced to writing and signed by the witnesses.
2. No will shall be proved as a lost or destroyed will unless it is proved to have been in existence at the time of death of the testator, or is shown to have been fraudulently destroyed in the lifetime of the testator, nor unless its provisions are clearly and distinctly proved by at least two (2) credible witnesses.
3. When a lost will is established, the provisions thereof shall be distinctly stated and certified by the judge, under his hand and the seal of the court, and the certificate shall be filed and recorded as other wills are filed and recorded, and letters testamentary or of administration with the will annexed, shall be issued thereon in the same manner as upon wills produced and duly proved.
4. If before or during the pendency of an application to prove a lost or destroyed will, letters of administration are granted on the estate of the testator or letters testamentary of any previous will of the testator are granted, the court may restrain the personal representatives so appointed from any acts or proceedings which would be injurious to the legatees or devisees claiming under the lost or destroyed will.

History. Laws 1890-91, ch. 70, art. 4, § 4; R.S. 1899, § 4597; C.S. 1910, § 5435; C.S. 1920, § 6707; R.S. 1931, § 88-404; C.S. 1945, § 6-604; W.S. 1957, § 2-75; W.S. 1977, § 2-4-243; Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

Sufficiency of evidence. —

Evidence was sufficient to support the trial court's finding that petitioner, decedent's brother, utterly failed to present evidence, as required under § 2-6-207(a), to support a conclusion that a purported lost will was properly executed; the only testimony remotely concerning the validity of the purported lost will came from decedent's brother, and one other witness, who both testified, inter alia, that they saw the will and checked the signature page and recognized the decedent's signature. Cheek v. Zerbe (In re Estate of Cheek), 2002 WY 130, 53 P.3d 113, 2002 Wyo. LEXIS 139 (Wyo. 2002).

Am. Jur. 2d, ALR and C.J.S. references. —

Sufficiency of evidence of nonrevocation of lost will not shown to have been inaccessible to testator — modern cases, 70 ALR4th 323.

§ 2-6-208. Order of preference for appointment of executor.

1. Letters testamentary may be granted to one or more persons found to be qualified. Preference for appointment shall be in the following order:
   1. The person designated in the will;
   2. Any beneficiary named in the will, or a person nominated by the beneficiaries;
   3. Any creditor of the decedent, or a person nominated by such creditor;
   4. Such other person as the court may find to be qualified.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 2-6-209. Order admitting or disallowing probate; mailing of copies.

The court or the clerk shall enter an order either admitting the will to probate or disallowing probate because of insufficient proof. An order admitting a will to probate shall include the appointment of an executor. The clerk, personal representative or attorney shall transmit by certified mail a copy of the order admitting the will to probate, together with a copy of the will, to each named beneficiary and to each heir of the decedent.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1; 1989, ch 115, § 1.

§ 2-6-210. Form of letters testamentary.

Letters testamentary must be substantially in the following form:

State of Wyoming County of ss The last will of A. B., deceased, a copy of which is hereto attached, having been proved and recorded in the district court within and for the county of , C. D. is hereby appointed executor. Witness, G. H., clerk of the district court of the district within and for the county of with the seal of the court affixed, the day of A.D. Clerk.

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History. Laws 1890-91, ch. 70, art. 6, § 1; R.S. 1899, § 4657; C.S. 1910, § 5524; C.S. 1920, § 6797; R.S. 1931, § 88-2101; C.S. 1945, § 6-801; W.S. 1957, § 2-90; W.S. 1977, § 2-5-101 ; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Law reviews. —

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part I,” VII Land & Water L. Rev. 169 (1972).

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part II,” VIII Land & Water L. Rev. 187 (1973).

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part III,” IX Land & Water L. Rev. 567 (1974).

§ 2-6-211. Authority of executor not designated in will.

Executors who are not designated in the will have the same authority over the estates which executors named in the will have.

History. Laws 1890-91, ch. 70, art. 5, § 8; R.S. 1899, § 4634; C.S. 1910, § 5501; C.S. 1920, § 6774; R.S. 1931, § 88-1608; C.S. 1945, § 6-708; W.S. 1957, § 2-113; W.S. 1977, § 2-5-308; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

As to appointment of administrator generally, see § 2-4-201 et seq.

§ 2-6-301. Filing and contents of petition to revoke.

After a will has been admitted to probate, any person interested may, within the time designated in the notice provided for in W.S. 2-6-122 or 2-7-201 , contest the will or the validity of the will. For that purpose he shall file in the court in which the will was proved a petition in writing containing his allegations against the validity of the will or against the sufficiency of the proof, and praying that the probate be revoked.

History. Laws 1890-91, ch. 70, art. 3, § 6; R.S. 1899, § 4607; C.S. 1910, § 5445; C.S. 1920, § 6817; Laws 1931, ch. 73, § 120; R.S. 1931, § 88-701; Laws 1945, ch. 3, § 1; C.S. 1945, § 6-408; W.S. 1957, § 2-83; Laws 1971, ch. 82, § 1; W.S. 1977, § 2-4-320; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1; 1981, ch. 151, § 2.

Cross references. —

For provision that probate shall be conclusive after three months, see § 2-6-306 .

Applicability. —

Son adopted the neighbors' allegations as his own and there was no question that the son's filing complied with Wyo. Stat. Ann. § 2-6-301 ' s requirements that he file a petition in writing containing his allegations against the validity of the will or against the sufficiency of the proof, and praying that the probate be revoked; the son timely filed an objection to the probate and it should have been treated as such. Russell v. Sullivan, 2012 WY 20, 270 P.3d 677, 2012 Wyo. LEXIS 22 (Wyo. 2012).

Proceedings for disproving or contesting a will were unknown to the common law. Gaunt v. Kansas Univ. Endowment Ass'n, 379 P.2d 825, 1963 Wyo. LEXIS 79 (Wyo. 1963).

Rather, right of contest is a creature of statute, and a contestant has such rights and only such rights as the law gives him. Gaunt v. Kansas Univ. Endowment Ass'n, 379 P.2d 825, 1963 Wyo. LEXIS 79 (Wyo. 1963).

Proceeding under section is not a civil action but a proceeding provided for in the Probate Code. Merrill v. District Court, 73 Wyo. 58, 272 P.2d 597, 1954 Wyo. LEXIS 12 (1954); Gaunt v. Kansas Univ. Endowment Ass'n, 379 P.2d 825, 1963 Wyo. LEXIS 79 (Wyo. 1963). But see §§ 2-2-308 and 2-6-302 .

Term “the court in which the will was proved,” within the meaning of this section, means the court of the jurisdiction within which the will was proved, that is, the probate arm of the district court. Gaunt v. Kansas Univ. Endowment Ass'n, 379 P.2d 825, 1963 Wyo. LEXIS 79 (Wyo. 1963).

The reference in this section to “the court in which the will was proved” was not intended by the legislature to have a broad and inclusive meaning as if there were one district court in a given judicial district for several counties, and as if there were one district court in a given county for several jurisdictions such as civil, criminal and probate. Gaunt v. Kansas Univ. Endowment Ass'n, 379 P.2d 825, 1963 Wyo. LEXIS 79 (Wyo. 1963).

Within the meaning of this section, the term “the court in which the will was proved” means the court of the county in which the will was proved. Gaunt v. Kansas Univ. Endowment Ass'n, 379 P.2d 825, 1963 Wyo. LEXIS 79 (Wyo. 1963).

Matters exclusively within jurisdiction of probate court. —

A court having equitable powers cannot set aside an order admitting a will to probate, since the probate of a will is a matter exclusively within the jurisdiction of the probate court. Gaunt v. Kansas Univ. Endowment Ass'n, 379 P.2d 825, 1963 Wyo. LEXIS 79 (Wyo. 1963).

How jurisdiction obtained. —

Under this section, jurisdiction of the subject matter by the court is acquired in the filing of the petition for revocation of probate. Merrill v. District Court of Fifth Judicial Dist., 73 Wyo. 58, 272 P.2d 597, 1954 Wyo. LEXIS 12 (Wyo. 1954).

When the court obtains jurisdiction of the subject matter, it does not thereby obtain jurisdiction of the parties until issuance and service of the citation provided for by § 2-6-302 .Merrill v. District Court of Fifth Judicial Dist., 73 Wyo. 58, 272 P.2d 597, 1954 Wyo. LEXIS 12 (Wyo. 1954).

Wills must be contested within time limit. —

Prompt and immediate administration of estates is a matter of special public policy clearly manifest in the statutes of this state and by the very fact that wills must be contested under this section within a limited time, which has been reduced by the legislature. Hartt v. Brimmer, 74 Wyo. 356, 287 P.2d 645, 1955 Wyo. LEXIS 41 (Wyo. 1955).

Even though probate ex parte and without notice to heirs. —

This section and §§ 2-6-303 and 2-6-306 on their face relate only to contest of a will or the validity thereof, and an action thereunder would be barred after six (now three) months from admission of will to probate even though probate was ex parte and without notice to heirs. Hartt v. Brimmer, 74 Wyo. 356, 287 P.2d 645, 1955 Wyo. LEXIS 41 (Wyo. 1955).

Attack on order of probate for defect in procedure distinguished.—

An attack on an order of probate because of a defect in procedure, while related, is distinct from a contest of a will in which, though incidentally seeking to set the order of probate aside, the will itself, or the validity thereof, is attacked. Hartt v. Brimmer, 74 Wyo. 356, 287 P.2d 645, 1955 Wyo. LEXIS 41 (Wyo. 1955).

No-contest or in terrorem clause enforced despite contestant'sgood faith and probable cause. —

The district court does not err in enforcing the terms of a will's no-contest or in terrorem clause without first considering whether the contestant contested the will in good faith and with probable cause to believe the will was invalid. Dainton v. Watson, 658 P.2d 79, 1983 Wyo. LEXIS 283 (Wyo. 1983).

Applied in

Kortz v. American Nat'l Bank, 571 P.2d 985, 1977 Wyo. LEXIS 303 (Wyo. 1977).

Cited in

Rice v. Tilton, 14 Wyo. 101, 82 P. 577, 1905 Wyo. LEXIS 34 (1905); In re Lane's Estate, 50 Wyo. 119, 58 P.2d 415, 1936 Wyo. LEXIS 5 (1936); Burns v. Burns, 67 Wyo. 314, 224 P.2d 178, 1950 Wyo. LEXIS 16 (1950); In re Estate of Wilson, 397 P.2d 805, 1964 Wyo. LEXIS 138 (Wyo. 1964); In re Estate of Morton, 428 P.2d 725, 1967 Wyo. LEXIS 159 (Wyo. 1967); Taylor v. Estate of Taylor, 719 P.2d 234, 1986 Wyo. LEXIS 557 (Wyo. 1986); Gaston v. Wagner (In re Estate of Meeker), 2017 WY 75, 397 P.3d 183, 2017 Wyo. LEXIS 75 (Wyo. 2017).

Law reviews. —

For note on limitation period for contesting probate of wills, see 1 Wyo. L.J. 131.

See “The Curative Act and the Probate Code,” 3 Wyo. L.J. 204.

See note, “Probate Procedure — Distinctions Between the Probate and Civil Arms of the District Courts,” 19 Wyo. L.J. 241 (1965).

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part II,” VIII Land & Water L. Rev. 187 (1973).

Am. Jur. 2d, ALR and C.J.S. references. —

Challenge in collateral proceeding to decree admitting will to probate, on ground of fraud inducing complainant not to resist probate, 84 ALR3d 1119.

Validity and enforceability of provision of will or trust instrument for forfeiture or reduction of share of contesting beneficiary, 23 ALR4th 369.

Adopted child as subject to protection of statute regarding rights of children pretermitted by will, or statute preventing disinheritance of child, 43 ALR4th 947.

Fraud as extending statutory limitations period for contesting will or its probate, 48 ALR4th 1094.

What constitutes contest or attempt to defeat will within provision thereof forfeiting share of contesting beneficiary, 3 ALR5th 590.

Action for tortious interference with bequest as precluded by will contest remedy, 18 ALR5th 211.

§ 2-6-302. Summons and notification; proceedings governed by civil rules.

Upon filing the petition, a summons shall be served upon the executors of the will and the clerk shall send notice by certified mail, with copy of petition attached, to all the legatees and devisees mentioned in the will and all the heirs, so far as known to the petitioner, or to their guardians if any of them are minors, or to their personal representatives if any of them are dead. The summons, service and proceedings shall be governed by the Wyoming Rules of Civil Procedure.

History. Laws 1890-91, ch. 70, art. 3, § 7; R.S. 1899, § 4608; C.S. 1910, § 5446; C.S. 1920, § 6718; R.S. 1931, § 88-702; C.S. 1945, § 6-409; W.S. 1957, § 2-84; W.S. 1977, § 2-4-321; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

For the provisions of the Wyoming Rules of Civil Procedure, see the Wyoming Court Rules Annotated.

Editor's notes. —

The following cases were decided prior to the 1980 revision of title 2 and this section when summons, etc., were made governable by the Wyoming Rules of Civil Procedure, which may affect their holdings in this regard.

Court may dismiss proceeding where citation not issued within time contemplated. —

If citation is not issued within the time contemplated, the court has inherent power to dismiss the proceeding for want of prosecution. Merrill v. District Court, 73 Wyo. 58, 272 P.2d 597, 1954 Wyo. LEXIS 12 (1954). See § 2-6-301 as to time for contest.

But issuance within definite period not jurisdictional. —

This section does not fix a definite time in which the citation must be issued and served, and has not made the issuance of a citation within six (now three) months after probate of the will jurisdictional. Merrill v. District Court of Fifth Judicial Dist., 73 Wyo. 58, 272 P.2d 597, 1954 Wyo. LEXIS 12 (Wyo. 1954).

Hence, the rule of reasonable time would ordinarily be applicable. Merrill v. District Court of Fifth Judicial Dist., 73 Wyo. 58, 272 P.2d 597, 1954 Wyo. LEXIS 12 (Wyo. 1954).

And court may in its discretion relieve party from default. —

While ordinarily the citation mentioned in this section should be issued within six (now three) months after a will has been admitted to probate, in view of the fact that the section does not fix a definite time, the court has power and judicial discretion to relieve a party seeking to revoke a will of the default in doing so, provided that no harm is done by the delay, and provided that relief from the default is justifiable and is asked of the court within a reasonable time. Merrill v. District Court of Fifth Judicial Dist., 73 Wyo. 58, 272 P.2d 597, 1954 Wyo. LEXIS 12 (Wyo. 1954).

Where delay in issuing citation required by this section did not exceed 16 days after expiration of the six (now three) month period from probate of will, discretion of the court in relieving party of default in doing so did not appear on facts in the case to have been abused. Merrill v. District Court of Fifth Judicial Dist., 73 Wyo. 58, 272 P.2d 597, 1954 Wyo. LEXIS 12 (Wyo. 1954).

Cited in

Gaston v. Wagner (In re Estate of Meeker), 2017 WY 75, 397 P.3d 183, 2017 Wyo. LEXIS 75 (Wyo. 2017).

Applied in

Gaunt v. Kansas Univ. Endowment Ass'n, 379 P.2d 825, 1963 Wyo. LEXIS 79 (Wyo. 1963).

Law reviews. —

See “The Curative Act and the Probate Code,” 3 Wyo. L.J. 204.

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part II,” VIII Land & Water L. Rev. 187 (1973).

§ 2-6-303. Annulment and revocation.

If upon trial, the jury, or if no jury, the court decides the will is invalid or that it is not sufficiently proved to be the last will of the testator, the probate shall be annulled and revoked.

History. Laws 1890-91, ch. 70, art. 3, § 9; R.S. 1899, § 4610; C.S. 1910, § 5448; C.S. 1920, § 6720; Laws 1921, ch. 28, § 5; R.S. 1931, § 88-704; C.S. 1945, § 6-411; W.S. 1957, § 2-86; W.S. 1977, § 2-4-323; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

As to trial by jury generally, see Rule 38, W.R.C.P. et seq.

Law reviews. —

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part II,” VIII Land & Water L. Rev. 187 (1973).

Cited in

Rice v. Tilton, 14 Wyo. 101, 82 P. 577, 1905 Wyo. LEXIS 34 (1905); Hartt v. Brimmer, 74 Wyo. 356, 287 P.2d 645, 1955 Wyo. LEXIS 41 (1955).

§ 2-6-304. Cessation of executor's powers; immunity.

Upon the revocation being made, the powers of the executor cease, but the executor is not liable for any act done in good faith previous to the revocation.

History. Laws 1890-91, ch. 70, art. 3, § 10; R.S. 1899, § 4611; C.S. 1910, § 5449; C.S. 1920, § 6721; R.S. 1931, § 88-705; C.S. 1945, § 6-412; W.S. 1957, § 2-87; W.S. 1977, § 2-4-324; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Administrator entitled to credit for disbursements and commissions.—

An administrator acting in good faith under a voidable order of appointment is entitled to credit for reasonable disbursements and commissions. Rice v. Tilton, 14 Wyo. 101, 82 P. 577, 1905 Wyo. LEXIS 34 (Wyo. 1905).

§ 2-6-305. Liability for payment of contest costs.

The fees and expenses shall be paid by the party contesting the validity or probate of the will if the will in probate is affirmed. If the probate is revoked, the costs shall be paid by the party who resisted the revocation, or out of the property of the decedent, as the court directs.

History. Laws 1890-91, ch. 70, art. 3, § 11; R.S. 1899, § 4612; C.S. 1910, § 5450; C.S. 1920, § 6722; R.S. 1931, § 88-706; C.S. 1945, § 6-413; W.S. 1957, § 2-88; W.S. 1977, § 2-4-325; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Section applies to any contest, whether based upon the authority of § 2-6-301 or not and whether before or after the will is admitted. In re Estate of Wilson, 397 P.2d 805, 1964 Wyo. LEXIS 138 (Wyo. 1964), rehearing denied, 399 P.2d 1008, 1965 Wyo. LEXIS 126 (Wyo. 1965) (decided prior to 1980 revision of title 2).

Attorney's fees not recoverable. —

An award of attorney's fees to the personal representative and a beneficiary, who prevailed in a will contest, was not authorized by this section. In re Estate of Croft, 734 P.2d 59, 1987 Wyo. LEXIS 412 (Wyo. 1987).

Applied in

In re Estate of Wilson, 399 P.2d 1008, 1965 Wyo. LEXIS 126 (Wyo. 1965).

§ 2-6-306. When probate deemed conclusive.

If no person within the time designated in the notice provided for in W.S. 2-6-122 or 2-7-201 files a petition to contest the will or its validity, the probate of the will is conclusive.

History. Laws 1890-91, ch. 70, art. 3, § 12; R.S. 1899, § 4613; C.S. 1910, § 5451; C.S. 1920, § 6723; Laws 1931, ch. 73, § 121; R.S. 1931, § 88-707; Laws 1945, ch. 52, § 1; C.S. 1945, § 6-414; W.S. 1957, § 2-89; Laws 1971, ch. 80, § 1; W.S. 1977, § 2-4-326; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1; 1981, ch. 151, § 2.

Cross references. —

As to time that probate should be contested, see § 2-6-301 .

Legislative intent. —

Prompt and immediate administration of estates is matter of special public policy clearly manifest in statutes of this state and by the very fact that wills must be contested under this section within a limited time, which has been reduced by the legislature. Hartt v. Brimmer, 74 Wyo. 356, 287 P.2d 645, 1955 Wyo. LEXIS 41 (Wyo. 1955).

Applicability. —

Argument that this section does not apply where purported defects in a will are observable only upon actual examination of the will which is filed for probate is without merit, and is in direct contradiction to the plain and unambiguous language of this section. Kortz v. American Nat'l Bank, 571 P.2d 985, 1977 Wyo. LEXIS 303 (Wyo. 1977).

Stated in

Burns v. Burns, 67 Wyo. 314, 224 P.2d 178, 1950 Wyo. LEXIS 16 (1950).

Cited in

Taylor v. Estate of Taylor, 719 P.2d 234, 1986 Wyo. LEXIS 557 (Wyo. 1986).

Law reviews. —

See “Legislation,” 1 Wyo. L.J. 126.

§ 2-7-101. Presumption of death; how estate handled.

When any person leaves his usual place of abode and is not seen or heard from by his relatives or other persons reasonably expected to hear from him for a period of seven (7) years, the person is presumed to be dead. If the person owned real or personal property in Wyoming, administration of the estate of the person may be had in the manner provided by law.

History. Laws 1947, ch. 78, § 1; W.S. 1957, § 1-190; Laws 1977, ch. 188, § 1; W.S. 1977, § 1-12-502 ; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cross references. —

As to written findings of presumed death of military personnel, see §§ 1-12-401 to 1-12-403 .

Law reviews. —

See comment, “The Presumption of Death Problem in Title Examination,” 6 Wyo. L.J. 189.

See “Belief in Death of Absent Consort as a Defense to a Charge of Bigamy,” 10 Wyo. L.J. 158.

Am. Jur. 2d, ALR and C.J.S. references. —

Presumption of death of former spouse in favor of validity of second marriage, 14 ALR2d 7.

Proof of death in case of disappearance of insured, 26 ALR2d 1073.

Necessity and sufficiency of showing of search and inquiry by one relying on presumption of death from seven years' absence, 99 ALR2d 307.

§ 2-7-102. Penalty for administering without proving will or taking letters of administration.

Any person, except one acting under the provisions of W.S. 2-1-201 and 2-1-202 , who administers the personal estate of any person dying after the passage of this act, or any part thereof, without proving the will of the deceased or taking out letters of administration of such personal estate, shall be punished by imprisonment in the county jail not more than one (1) year or by a fine not exceeding five hundred dollars ($500.00) or both.

History. Laws 1925, ch. 78, § 26; R.S. 1931, § 115-1226; C.S. 1945, § 6-2126; W.S. 1957, § 39-366; Laws 1977, ch. 51, § 3; W.S. 1977, § 2-1-103 ; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Repealing clauses. —

Laws 1925, ch. 78, § 33, reads: “Chapter 180 of the Wyoming Compiled Statutes of 1920, and chapter 126 of the Wyoming Session Laws of 1923, and all acts and parts of acts in conflict herewith, are hereby repealed, provided, however, that this act shall not operate to release or waive or otherwise alter or affect any tax or taxes which may have accrued under the provisions of any prior act.”

Effect of conflicting 1977 legislation. —

Section 6, ch. 51, Laws 1977, reads: “If any other act of the legislature enacted during the same session in which this act is enacted is in conflict with the provisions of this act, the other act shall prevail in all cases to the extent of such conflict, regardless of whether enacted before or after the enactment of this act.”

Cited in

George v. Allen (In re Estate of George), 2003 WY 129, 77 P.3d 1219, 2003 Wyo. LEXIS 158 (Wyo. 2003).

§ 2-7-103. Personal representative to take possession of estate.

The personal representative shall take possession of all of the estate of the decedent, real and personal, and collect all debts due the decedent or the estate. For the purpose of bringing suit to quiet title or for partition of the estate, the possession of the personal representative is the possession of the distributees. Possession by the distributees is subject to the possession of the personal representative for the purposes of administration as applied to this chapter.

History. Laws 1890-91, ch. 70, art. 16, § 1; R.S. 1899, § 4693; C.S. 1910, § 5561; C.S. 1920, § 6834; R.S. 1931, § 88-2501; C.S. 1945, § 6-1901; W.S. 1957, § 2-142; W.S. 1977, § 2-5-601; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Meaning of “this chapter.” —

The term “this chapter” refers to provisions enacted in the original 1890-91 Probate Code and should now read “this article.”

Avoidance of chattel mortgage. —

The administrator of a deceased mortgagor, as representing creditors of the estate, may avoid chattel mortgage because not renewed, the estate being insolvent, though claims of creditors were not filed until after suit was brought. First Nat'l Bank v. Ludvigsen, 8 Wyo. 230, 56 P. 994, 1899 Wyo. LEXIS 8 (1899), rehearing denied, 8 Wyo. 230, 57 P. 934, 1899 Wyo. LEXIS 9 (1899) (decided prior to adoption of Uniform Commercial Code).

Applied in

Ashley v. Read Constr. Co., 195 F. Supp. 727, 1961 U.S. Dist. LEXIS 2825 (D. Wyo. 1961).

Stated in

Field v. Leiter, 16 Wyo. 1, 90 P. 378, 1907 Wyo. LEXIS 34 (1907).

Cited in

Bamforth v. Ihmsen, 28 Wyo. 282, 204 P. 345, 1922 Wyo. LEXIS 27 ; Hitshew v. Rosson, 41 Wyo. 509, 287 P. 316, 1930 Wyo. LEXIS 24 (1930); Metropolitan Life Ins. Co. v. Banion, 86 F.2d 886, 1936 U.S. App. LEXIS 3882 (10th Cir. 1939); George v. Allen (In re Estate of George), 2003 WY 129, 77 P.3d 1219, 2003 Wyo. LEXIS 158 (Wyo. 2003).

Am. Jur. 2d, ALR and C.J.S. references. —

Right of devisee or heir and duty of personal representative with respect to completion of improvements contracted for by decedent, 5 ALR2d 1250.

Power of sale conferred on executor by testator as authorizing private sale, 11 ALR2d 955.

Interlocutory mandatory injunction to obtain possession of property, 15 ALR2d 213.

Implied power of executor to sell real estate, 23 ALR2d 1000.

Right of foreign personal representative to vote stock owned by estate, 41 ALR2d 1082.

Authority of executor or administrator to make agreement to drop or compromise will contest or withdraw objection to probate, 42 A.L.R.2d 1319.

Power of executor to create easements, 44 ALR2d 573.

Instruction and effect of will authorizing or directing executor to retain investments received under will, 47 A.L.R.2d 187.

Kinds of property affected by will authorizing or directing executor to retain investments received under will, 47 A.L.R.2d 187.

Executor's conflicting interests and divided loyalty under will authorizing or directing executor to retain investments received under such instrument, 47 A.L.R.2d 187.

Notice by or to personal representative of exercise of option to renew lease, 51 ALR2d 1404.

Power of personal representative to repair personal property of estate, 64 ALR2d 857.

Power and standing of personal representative of deceased promisee to enforce a contract made for benefit of a third party, 76 ALR2d 231.

Power of executor with power to sell or to lease real property or to do both to give an option to purchase, 83 ALR2d 1310.

Duty of executor to locate and notify legatee or devisee, 10 ALR3d 547.

§ 2-7-104. Actions maintainable by or against personal representatives; right generally.

Actions for the recovery of any property, real or personal, or for the possession thereof, or for the destruction, wasting, conversion, injury, taking or carrying away thereof, or to quiet title thereto, or to determine any adverse claim thereon, and all actions founded upon contract, may be maintained by and against the personal representative in all cases in which the action might have been maintained by or against their respective testators or intestates.

History. Laws 1890-91, ch. 70, art. 16, § 2; R.S. 1899, § 4694; C.S. 1910, § 5562; Laws 1919, ch. 19, § 1; C.S. 1920, § 6835; R.S. 1931, § 88-2502; C.S. 1945, § 6-1902; W.S. 1957, § 2-143; W.S. 1977, § 2-5-602; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

For provision requiring claims to be presented prior to maintaining actions thereon, see § 2-7-717 .

For rule of civil procedure as to real party in interest, see Rule 17 (a), W.R.C.P.

When orders of probate court beyond its jurisdiction. —

The orders of the probate court for a beneficiary to show cause and to deliver to the administrator personal property, given inter vivos to the stated beneficiary by the decedent, are beyond its jurisdiction and are void. Ferriter v. Estate of Blaney, 607 P.2d 354, 1980 Wyo. LEXIS 244 (Wyo. 1980).

Administrator's replevin action in district not probate court.—

The district court, and not the district court sitting as the probate court, is the proper forum for an administrator to bring a replevin action. Ferriter v. Estate of Blaney, 607 P.2d 354, 1980 Wyo. LEXIS 244 (Wyo. 1980).

Section does not limit action against executor or administrator alone for the recovery of realty. Delfelder v. Teton Land & Inv. Co., 46 Wyo. 142, 24 P.2d 702, 1933 Wyo. LEXIS 37 (Wyo.), reh'g denied, 46 Wyo. 142, 26 P.2d 153, 1933 Wyo. LEXIS 38 (Wyo. 1933).

No action to establish resulting trust in land. —

Under this section and § 2-4-101 , an executor or administrator, as such, has no title to real estate and cannot maintain an action to establish resulting trust in land and compel a conveyance. Cook v. Elmore, 25 Wyo. 393, 171 P. 261, 1918 Wyo. LEXIS 4 (Wyo. 1918).

Creditors may avoid mortgage. —

The provisions of this section do not deprive creditors of deceased mortgagor of right to avoid a mortgage because it could not have been avoided by decedent, if alive, as all of decedent's property is chargeable with his debts. First Nat'l Bank v. Ludvigsen, 8 Wyo. 230, 56 P. 994, 1899 Wyo. LEXIS 8 (Wyo.), reh'g denied, 8 Wyo. 230, 57 P. 934, 1899 Wyo. LEXIS 9 (Wyo. 1899).

Applied in

Parker v. Artery, 889 P.2d 520, 1995 Wyo. LEXIS 14 (Wyo. 1995); Moncrief v. Williston Basin Interstate Pipeline Co., 880 F. Supp. 1495, 1995 U.S. Dist. LEXIS 3381 (D. Wyo. 1995).

Cited in

Metropolitan Life Ins. Co. v. Banion, 86 F.2d 886, 1936 U.S. App. LEXIS 3882 (10th Cir. 1939); Bamforth v. Ihmsen, 28 Wyo. 282, 204 P. 345, 1922 Wyo. LEXIS 27 ; Hitshew v. Rosson, 41 Wyo. 509, 287 P. 316, 1930 Wyo. LEXIS 24 (1930); In re Bergman, 60 Wyo. 355, 151 P.2d 360, 1944 Wyo. LEXIS 16 (1944).

Quoted in

Foster v. Wicklund, 778 P.2d 118, 1989 Wyo. LEXIS 187 (Wyo. 1989).

Am. Jur. 2d, ALR and C.J.S. references. —

Attorney's delay in handling decedent's estate as ground for disciplinary action, 21 ALR4th 75.

What constitutes “legal representative” or “personal representative” entitled to receive insurance proceeds on account of loss suffered by deceased, 40 ALR4th 255.

§ 2-7-105. Actions maintainable by or against personal representatives; actions for waste by representatives.

Personal representatives may maintain actions against any person who has wasted, destroyed, taken or carried away, or converted to his own use, the goods of their testator or intestate in his lifetime. They may also maintain actions for trespass committed on the real estate of the decedent in his lifetime.

History. Laws 1890-91, ch. 70, art. 16, § 3; R.S. 1899, § 4695; C.S. 1910, § 5563; C.S. 1920, § 6836; R.S. 1931, § 88-2503; C.S. 1945, § 6-1903; W.S. 1957, § 2-144; W.S. 1977, § 2-5-603; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

§ 2-7-106. Actions maintainable by or against personal representatives; actions for waste by representatives; against representatives.

Any person or his personal representative may maintain an action against the personal representative of any testator or intestate who in his lifetime has wasted, destroyed, taken or carried away, or converted to his own use, the goods or chattels of any person, or committed any trespass on the real estate of the person, provided the person claiming to be damaged by the tortious acts of the decedent files a claim for the amount of the damages within the time limited in the notice to creditors, and the claim is rejected.

History. Laws 1890-91, ch. 70, art. 16, § 4; R.S. 1899, § 4696; C.S. 1910, § 5564; C.S. 1920, § 6837; Laws 1931, ch. 73, § 128; R.S. 1931, § 88-2504; C.S. 1945, § 6-1904; W.S. 1957, § 2-145; W.S. 1977, § 2-5-604; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

As to appointment of attorney for minor or absent heirs, devisees, legatees or creditors, see § 2-2-310 .

Am. Jur. 2d, ALR and C.J.S. references. —

Conduct of attorney in capacity of executor or administrator of decedent's estate as ground for disciplinary action, 92 ALR3d 655.

§ 2-7-107. Disposition of partnership business.

When a partnership exists between the decedent at the time of his death and any other person or persons, the surviving partner or partners may continue in possession of the partnership and settle its business, but the interest of the decedent in the partnership shall be included in the inventory and appraised as other property. The surviving partner or partners shall settle the affairs of the partnership without delay, account to the personal representative and pay the funds as from time to time are payable to him, in the right of the decedent.

History. Laws 1890-91, ch. 70, art. 16, § 5; 1893, ch. 8, § 1; R.S. 1899, §§ 4697 to 4699; C.S. 1910, §§ 5565 to 5567; C.S. 1920, §§ 6838 to 6840; R.S. 1931, §§ 88-2505 to 88-2507; C.S. 1945, § 6-1905; W.S. 1957, § 2-146; W.S. 1977, § 2-5-605(a); Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

As to right of legal representative to knowledge of affairs of partnership of which decedent was member, see § 17-21-403.

As to right of surviving partners or legal representatives of last surviving partner to wind up partnership, see § 17-21-804.

As to Uniform Partnership Act, see §§ 17-21-101 to 17-21-1003.

As to Uniform Limited Partnership Act, see §§ 17-14-201 to 17-14-1104.

Editor's notes. —

Section 5, art. 16, Laws 1890-91 of the original Probate Code, as amended by § 1, ch. 8, Laws 1893, was divided into three sections in the Revised Statutes of 1899, and this separation was followed in the revisions of the statutes down to the Revised Statutes of 1931. The 1945 compiler returned this section to the form in which it was originally enacted, and it has since been so continued in ensuing compilations and revisions.

Right of surviving partner to possession of partnership property.—

Under this section surviving partner is entitled to possession of partnership property as against administratrix of deceased partner and her lessee, though he had given no bond, where administratrix had not qualified nor given bond. Thomas v. Mann, 22 Wyo. 99, 135 P. 1088, 1913 Wyo. LEXIS 39 (Wyo. 1913).

Duty to account. —

A surviving partner not in possession of partnership records nor knowledgeable about partnership affairs is not required to account to the estate of the deceased partner, to the exclusion of an accounting by the estate of the deceased partner, if the executor has that capability. Tschirgi v. Meyer, 536 P.2d 558, 1975 Wyo. LEXIS 146 (Wyo. 1975).

Presumption survivor used loan to complete partnership work.—

A bank loaning money to a surviving partner may assume that money was properly used for completion of partnership work, in absence of proof to the contrary. State Bank v. Bagley Bros., 44 Wyo. 244, 11 P.2d 572, 1932 Wyo. LEXIS 21 (Wyo.), reh'g denied, 44 Wyo. 456, 13 P.2d 564, 1932 Wyo. LEXIS 33 (Wyo. 1932).

Application of proceeds on partnership debts. —

Where proceeds of mortgaged cattle were applied by surviving partner on partnership debts, executrix of deceased partner could not complain that proceeds were not applied on mortgage debt. State Bank v. Bagley Bros., 44 Wyo. 244, 11 P.2d 572, 1932 Wyo. LEXIS 21 (Wyo.), reh'g denied, 44 Wyo. 456, 13 P.2d 564, 1932 Wyo. LEXIS 33 (Wyo. 1932).

Cited in

Thomas v. Mann, 22 Wyo. 99, 135 P. 1088, 1913 Wyo. LEXIS 39 (1913).

Law reviews. —

See “The Curative Act and the Probate Code,” 3 Wyo. L.J. 204.

Am. Jur. 2d, ALR and C.J.S. references. —

Rights in profits earned by partnership after death of partner, 55 ALR2d 1391.

Relative rights of surviving partner and estate of deceased partner in proceeds of life insurance acquired pursuant to partnership agreement, 83 ALR2d 1347.

Insurance on life of partner as partnership asset, 56 ALR3d 892.

§ 2-7-108. Actions on bond of former representatives.

A personal representative may, in his own name, for the use and benefit of all parties interested in the estate, maintain actions on the bond of any former personal representative or special order for the same estate.

History. Laws 1890-91, ch. 70, art. 16, § 6; R.S. 1899, § 4700; C.S. 1910, § 5568; C.S. 1920, § 6841; R.S. 1931, § 88-2508; C.S. 1945, § 6-1906; W.S. 1957, § 2-147; W.S. 1977, § 2-5-606; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

§ 2-7-109. Compromise of claims; owed to estate.

When it appears for the best interest of the estate, the fiduciary may, subject to approval of the court, effect a compromise with any debtor or other obligor, or extend, renew or in any other manner modify the terms of any obligation owing to the estate. If the fiduciary holds a mortgage, pledge or other lien upon property of another person, he may, in lieu of foreclosure, accept a conveyance or transfer of the encumbered assets from the owner thereof in satisfaction of the indebtedness secured by the lien, if it appears for the best interests of the estate and if the court so orders.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

§ 2-7-110. Compromise of claims; against estate.

When a claim against an estate has been filed, or suit thereon is pending, the creditor and the fiduciary may, if it appears for the best interests of the estate, subject to approval of the court, compromise the claim, whether it is due or not due, absolute or contingent, liquidated or unliquidated.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

§ 2-7-201. Admission of will or estate to probate and appointment of personal representative; contents; form.

Upon admission of a will or an estate of an intestate decedent to probate and issuance of letters, the personal representative shall cause to be published once a week for three (3) consecutive weeks in a daily or weekly newspaper of general circulation in the county in which the probate is pending, a notice of admission of the will or estate to probate and of the appointment of the personal representative. The notice shall state that any action to set aside the probate of the will shall be brought within three (3) months from the date of the first publication of the notice or thereafter be barred. The publication shall include a notice to debtors to make payment and to creditors having claims against the decedent to file them with the necessary vouchers in the office of the clerk of court from which the letters were issued within three (3) months from the date of the first publication of the notice, or thereafter be forever barred. The notice required by this section shall be substantially in the following form:

State of Wyoming County of In the Matter of the Estate of , Deceased. In the District Court ss Judicial District Notice of Probate Probate No. TO ALL PERSONS INTERESTED IN SAID ESTATE: You are hereby notified that on the day of , (year), the estate of the above named decedent was admitted to probate by the above named court, and that was appointed personal representative thereof. or — You are hereby notified that on the day of , (year), the Last Will and Testament of decedent was admitted to probate by the above named court, and was appointed personal representative thereof. Any action to set aside the Will shall be filed in the Court within three months from the date of the first publication of this notice, or thereafter be forever barred. Notice is further given that all persons indebted to the decedent or to his Estate are requested to make immediate payment to the undersigned at , Wyoming. Creditors having claims against the decedent or the estate are required to file them in duplicate with the necessary vouchers, in the office of the Clerk of said Court, on or before three months after the date of the first publication of this notice, and if such claims are not so filed, unless otherwise allowed or paid, they will be forever barred. Dated , (year) Personal Representative PUBLISH: (once a week for 3 successive weeks).

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History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1; 1999, ch. 150, § 2.

Notice provision lacked comportment with section by not stating that any action to set aside the will must be filed within three months. In re Estate of Reed, 768 P.2d 566, 1989 Wyo. LEXIS 28 (Wyo. 1989).

Reimbursement claims against wrongful death proceeds not barred. —

The bar set forth in § 2-7-703 against claims not filed in a timely manner against a decedent's estate does not operate to bar a claim by the state for reimbursement of worker's compensation benefits from wrongful death proceeds, because wrongful death proceeds are not part of the decedent's estate. West v. Wyoming State Treasurer, 822 P.2d 1269, 1991 Wyo. LEXIS 193 (Wyo. 1991).

Quoted in

Hanesworth v. Johnke, 783 P.2d 173, 1989 Wyo. LEXIS 233 (Wyo. 1989); Accelerated Receivable Solutions v. Hauf, 2015 WY 71, 2015 Wyo. LEXIS 82 (May 15, 2015).

Cited in

Taylor v. Estate of Taylor, 719 P.2d 234, 1986 Wyo. LEXIS 557 (Wyo. 1986); Scott v. Scott, 918 P.2d 198, 1996 Wyo. LEXIS 89 (Wyo. 1996); Harris v. Taylor, 969 P.2d 142, 1998 Wyo. LEXIS 175 (Wyo. 1998); Strngari v. Taylor (In re Estate of Novakovich), 2004 WY 158, 101 P.3d 931, 2004 Wyo. LEXIS 203 (2004).

Law reviews. —

For article, “The Ungrateful Living: An Estate Planner's Nightmare — The Trial Attorney's Dream,” see XXIV Land & Water L. Rev. 401 (1989).

Am. Jur. 2d, ALR and C.J.S. references. —

Fraud as extending statutory limitations period for contesting will or its probate, 48 ALR4th 1094.

§ 2-7-202. Public auction of real or personal property; contents.

1. When a sale of real or personal property of a decedent is ordered and is to be made at public auction, notice of the time and place of sale shall be published in a daily or weekly newspaper of general circulation in the county in which the probate is pending and in the county in which such property is situate once a week for three (3) consecutive weeks next before the sale, except in the case of perishable and other personal property likely to depreciate in value or which will incur loss by being kept, and as much other personal property as may be necessary to pay the allowance made to the family of the decedent.
2. Notice shall set forth the time and place of sale and a description of the property offered for sale, and may provide that any and all bids may be rejected by the personal representative.
3. A copy of the notice shall also be mailed as provided in W.S. 2-7-205 .

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

§ 2-7-203. Order to show cause for setting off exempt property; form.

1. The order to show cause shall be published once in a newspaper of general circulation in the county in which the probate is pending, and a copy of the order shall be mailed by the personal representative to each heir and beneficiary. The publication and mailing shall be not less than ten (10) days prior to the date set for hearing.
2. The publication and notice may be combined with the notice opening the probate but the hearing on the order shall not be held prior to ten (10) days after the filing of the appraisement.
3. The notice shall be substantially in the following form:

   State of Wyoming County of In the Matter of the Estate of , Deceased. In the District Court ss Judicial District Probate No. Order to Show Cause Petition having been filed in this Court praying to have the exempt property of the Estate, including homestead, set over to the person or persons entitled thereto. Now, therefore, it is hereby ordered that all persons interested appear before this Court sitting in , Wyoming, on the day of , (year), at the hour of o'clock in the room, to show cause why the exempt property should not be set over to the person or persons entitled thereto. It is further ordered that a copy of this Order be published on the day of (year), in a newspaper of general circulation and that copies of this Order be mailed to the heirs and beneficiaries of the decedent not less than ten (10) days prior to the date set for said hearing. Dated this day of , (year) BY THE COURT: PUBLISH: Judge

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History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1; 1999, ch. 150, § 2.

§ 2-7-204. Final account and petition for distribution; form.

1. When an estate is in condition for final settlement, but not less than three (3) months after the date of the first publication of the notice of opening the probate, the personal representative shall give notice that he has filed in the office of the clerk of court a final account and petition for distribution, where anyone interested may examine and file objections thereto in writing at any time within ten (10) days after the day mentioned in the notice, naming the last day on which any objections may be filed. The notice shall state if no objections are filed within the time allowed, he shall make final settlement of the estate on the day following the last day for filing objections or as soon thereafter as the matter may be heard.
2. The notice shall be substantially in the following form:

   NOTICE OF FINAL SETTLEMENT OF ESTATE State of Wyoming County of ss Probate No. To all persons interested in the Estate of , deceased, take notice that the undersigned Personal Representative did, on the day of , (year), file in the office of the Clerk of the District Court, Judicial District, in said County and State, his Final Account and Petition for Distribution of the Estate, a copy of which is hereby delivered to you, and upon examination of the Account and Petition you may file objections thereto in writing with the Clerk at any time on or before the day of , (year). If no objections are filed thereto, the Personal Representative will make final settlement of the Estate on the day of , (year), or as soon thereafter as the matter may be heard. Dated the day of , (year). Personal Representative

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History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1; 1981, ch. 151, § 2; 1999, ch. 150, § 2.

§ 2-7-205. Parties entitled to receive.

1. Subject to subsection (d) of this section, a true copy of the notice required in W.S. 2-7-201 shall be mailed by ordinary United States mail, first class, to:
   1. The surviving spouse, if any, and to all of the heirs at law of the decedent and to all of the beneficiaries named in the will of the decedent. The mailings shall be made not later than one (1) week after the first publication of the notice in the newspaper;
   2. Each creditor of the decedent whose identity is reasonably ascertainable by the personal representative within the time limited in the notice to creditors. The mailing shall be made not later than thirty (30) days prior to the expiration of three (3) months after the first publication of the notice in the newspaper;
   3. The state department of health if the decedent received medical assistance pursuant to W.S. 42-4-101 through 42-4-114 ; and
   4. The department of family services if the decedent or any heir at law of the decedent, if known, is the obligor on a child support order being enforced by the department.
2. Unless waived in writing by the parties entitled thereto, the notices required in W.S. 2-7-202 , 2-7-203 , 2-7-204 , 2-7-615 , 2-7-806 , 2-7-807 and 2-7-811 shall be mailed not less than ten (10) days prior to the day of hearing, the date for filing objections, or sale, as the case may be, to the surviving spouse, if any, and to all of the heirs of a decedent dying intestate or to all of the beneficiaries named in the will of a decedent dying testate.
3. Notice of all intended sales of real property not requiring an order of the court shall be mailed or delivered not less than ten (10) days prior to the sale to the surviving spouse, if any, and to the heirs of a decedent dying intestate or to all of the beneficiaries named in the will of a decedent dying testate.
4. Notice to the agent or attorney of any party entitled to notice under this section is notice to that party.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1; 1989, ch 114, § 1; 1995, ch. 80, § 1; 2015, ch. 113, § 1; 2017, ch. 125, § 1; ch. 125, § 1.

The 2015 amendment, effective July 1, 2015, added (a)(iv), and made related changes.

The 2017 amendment , effective July 1, 2017, in (a), added “Subject to subsection (j) of this section” at the beginning; and added (d).

Beneficiaries of trusts created in will. —

Any beneficiary of a trust created in a will is not a beneficiary under the will for purposes of the notice requirements of §§ 2-7-615 and 2-7-205 .In re Estate of Jones, 782 P.2d 229, 1989 Wyo. LEXIS 242 (Wyo. 1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2587, 110 L. Ed. 2d 268, 1990 U.S. LEXIS 2955 (U.S. 1990).

Failure to provide. —

Personal representative's failure to provide actual notice to husband, as a known creditor of wife's estate, precluded finding that husband had obligation to file notice of claim against estate within statutory time frame. Harris v. Taylor, 969 P.2d 142, 1998 Wyo. LEXIS 175 (Wyo. 1998).

Quoted in

In re Estate of Reed, 768 P.2d 566, 1989 Wyo. LEXIS 28 (Wyo. 1989); Hanesworth v. Johnke, 783 P.2d 173, 1989 Wyo. LEXIS 233 (Wyo. 1989); Rodriguez v. Casey, 2002 WY 111, 50 P.3d 323, 2002 Wyo. LEXIS 117 (Wyo. 2002).

Cited in

West v. Wyoming State Treas., 822 P.2d 1269, 1991 Wyo. LEXIS 193 (Wyo. 1991); State ex rel. Dep't of Health v. Campbell, 950 P.2d 557, 1997 Wyo. LEXIS 161 (Wyo. 1997); Strngari v. Taylor (In re Estate of Novakovich), 2004 WY 158, 101 P.3d 931, 2004 Wyo. LEXIS 203 (2004); Gaston v. Wagner (In re Estate of Meeker), 2017 WY 75, 397 P.3d 183, 2017 Wyo. LEXIS 75 (Wyo. 2017).

Law reviews. —

For article, “The Ungrateful Living: An Estate Planner's Nightmare — The Trial Attorney's Dream,” see XXIV Land & Water L. Rev. 401 (1989).

§ 2-7-206. Proof by affidavit; filing thereof.

1. The proof of publication of the notices required in W.S. 2-7-201 , 2-7-202 and 2-7-203 shall be by affidavit of the publisher.
2. The proof of mailing or delivery of all notices required in W.S. 2-7-201 , 2-7-202 , 2-7-203 , 2-7-204 and 2-7-205 shall be by affidavit of the personal representative or his attorney.
3. The affidavits for proof of publication and mailing notices shall be filed with the clerk of court from which the letters were issued.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

§ 2-7-301. Appointment of special administrator; when to be made.

When there is delay in granting letters from any cause, or when the letters are granted irregularly, or no sufficient bond is filed as required, or when no application is made for letters, or when a personal representative dies or is suspended or removed, the district court shall appoint a special administrator to collect and take charge of the estate of the decedent in whatever county or counties the estate assets may be found, and to exercise all powers necessary for the preservation of the estate.

History. Laws 1890-91, ch. 70, art. 9, § 1; R.S. 1899, § 4639; C.S. 1910, § 5506; C.S. 1920, § 6779; R.S. 1931, § 88-1801; C.S. 1945, § 6-1101; W.S. 1957, § 2-114; W.S. 1977, § 2-5-401; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

A coadministrator may be appointed to act with administratrix, with latter's consent. Lethbridge v. Lauder, 13 Wyo. 9, 76 P. 682, 1904 Wyo. LEXIS 20 (Wyo. 1904).

And calling him “special administrator” does not vitiate appointment.—

Fact that a coadministrator, appointed to act with an administratrix, is misnamed “special administrator” does not vitiate his appointment. Lethbridge v. Lauder, 13 Wyo. 9, 76 P. 682, 1904 Wyo. LEXIS 20 (Wyo. 1904).

Law reviews. —

See article, “Wyoming's Law of Decedents' Estates, Guardianships and Trusts: A Comparison with the Uniform Probate Code — Part II,” VIII Land & Water L. Rev. 187 (1973).

§ 2-7-302. Appointment of special administrator; entry of order and issuance of letters.

The appointment may be made at any time without notice. Appointment shall be made by entry upon the minutes of the court specifying the powers to be exercised by the special administrator. Upon entry of the order and filing of the required bond, the clerk shall issue letters to the person in conformity with the order.

History. Laws 1890-91, ch. 70, art. 9, § 2; R.S. 1899, § 4640; C.S. 1910, § 5507; C.S. 1920, § 6780; R.S. 1931, § 88-1802; C.S. 1945, § 6-1102; W.S. 1957, § 2-115; W.S. 1977, § 2-5-402; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

§ 2-7-303. Appointment of special administrator; preferences; appeal precluded.

In making the appointment of a special administrator, the court or officer shall give preference to the person entitled to letters but no appeal to the supreme court shall be allowed from the appointment.

History. Laws 1890-91, ch. 70, art. 9, § 3; R.S. 1899, § 4641; C.S. 1910, § 5508; C.S. 1920, § 6781; Laws 1931, ch. 73, § 124; R.S. 1931, § 88-1803; C.S. 1945, § 6-1103; W.S. 1957, § 2-116; W.S. 1977, § 2-5-403; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

For rules of procedure governing appeals generally, see Wyoming Rules of Appellate Procedure.

§ 2-7-304. Special administrator; surety and oath.

Before any letters are issued to any special administrator, he shall provide such surety as the court or officer directs. He shall take the usual oath and have the oath endorsed on his letters.

History. Laws 1890-91, ch. 70, art. 9, § 4; R.S. 1899, § 4642; C.S. 1910, § 5509; C.S. 1920, § 6782; R.S. 1931, § 88-1804; C.S. 1945, § 6-1104; W.S. 1957, § 2-117; W.S. 1977, § 2-5-404; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

As to oath of executors and administrators generally, see § 2-3-101 .

§ 2-7-305. Special administrator; powers and duties; no liability to creditors.

The special administrator shall collect and preserve for the personal representative all goods, chattels, debts and effects of the decedent, and all incomes, rents, issues and profits, claims and demands of the estate. He shall take the charge and management of, enter upon, and preserve from damage, waste and injury, the real estate. For any and all necessary purposes he may commence and maintain or defend suits and other legal proceedings as an administrator. He may sell the perishable property as the court or officer may order to be sold, and exercise such other powers as are conferred upon him by his appointment, but in no case is he liable to any creditor on a claim against the decedent.

History. Laws 1890-91, ch. 70, art. 9, § 5; R.S. 1899, § 4643; C.S. 1910, § 5510; C.S. 1920, § 6783; R.S. 1931, § 88-1805; C.S. 1945, § 6-1105; W.S. 1957, § 2-118; W.S. 1977, § 2-5-405; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Special administrator may act to preserve decedent's rightof appeal. —

Special administrator for estate of party to action who dies after judgment was entered could file petition in error to review judgment or apply for extension of time within which to file petition so as to preserve appeal under statute which limits time to appeal. Rowray v. McCarthy, 48 Wyo. 108, 42 P.2d 54, 1935 Wyo. LEXIS 23 (1935) (decided prior to abolishment of proceedings in error). See Rule 1.06, W.R.A.P.

§ 2-7-306. Special administrator; cessation of powers.

When letters on the estate of the decedent have been granted, the powers of the special administrator cease, and he shall forthwith deliver to the personal representative all the property and effects of the decedent in his hands, and the personal representative may prosecute to final judgment any suit commenced by the special administrator.

History. Laws 1890-91, ch. 70, art. 9, § 6; R.S. 1899, § 4644; C.S. 1910, § 5511; C.S. 1920, § 6784; R.S. 1931, § 88-1806; C.S. 1945, § 6-1106; W.S. 1957, § 2-119; W.S. 1977, § 2-5-406; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

As to barring of claims upon failure of creditors to apply for letters within two years, see § 2-4-212 .

§ 2-7-307. Special administrator; rendition of account.

The special administrator shall render an account, on oath, of his proceedings, in like manner as other personal representatives are required to do.

History. Laws 1890-91, ch. 70, art. 9, § 7; R.S. 1899, § 4645; C.S. 1910, § 5512; C.S. 1920, § 6785; R.S. 1931, § 88-1807; C.S. 1945, § 6-1107; W.S. 1957, § 2-120; W.S. 1977, § 2-5-407; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

For provisions relating to reporting and accounting by personal representatives, see §§ 2-7-806 and 2-7-811 .

§ 2-7-401. Personal representative entitled to possession of all property; duty to repair; actions by heirs for possession or to quiet title.

The personal representative is entitled to possession of all real and personal estate of the decedent, and to receive the rents and profits of the real estate until the estate is settled or until delivery by order of the court to the heirs or beneficiaries. He shall keep in good repair all houses, buildings and fixtures under his control. The heirs or beneficiaries may themselves or jointly with the personal representative maintain an action for possession of the real estate or for quieting title to the same, against anyone except the personal representative, but this section shall not be so construed as requiring them to do so.

History. Laws 1890-91, ch. 70, art. 11, § 9; R.S. 1899, § 4688; C.S. 1910, § 5556; C.S. 1920, § 6829; R.S. 1931, § 88-2309; C.S. 1945, § 6-1309; W.S. 1957, § 2-161; W.S. 1977, § 2-5-709; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Administrator may bring action to quiet title to irrigation ditch rights, particularly in view of this section, which provides that he may so maintain such an action. Bamforth v. Ihmsen, 28 Wyo. 282, 204 P. 345, 1922 Wyo. LEXIS 27 (Wyo.), reh'g denied, 28 Wyo. 282, 205 P. 1004, 1922 Wyo. LEXIS 28 (Wyo. 1922).

And heirs may be allowed to intervene. —

Under this section, providing that heirs may separately or jointly with administrator or executor bring action to quiet title, a court in an administrator's action to quiet title to water rights would not be powerless to permit the heirs to intervene, at least where administrator consents. Bamforth v. Ihmsen, 28 Wyo. 282, 204 P. 345, 1922 Wyo. LEXIS 27 (Wyo.), reh'g denied, 28 Wyo. 282, 205 P. 1004, 1922 Wyo. LEXIS 28 (Wyo. 1922).

Surviving spouse held proper party in ejectment action. —

This section does not purport to limit an action for the recovery of real property against the executor or administrator alone, and a widow occupying mortgaged premises and claiming it as a homestead in her individual capacity, and not as executrix, is a proper party defendant to an ejectment action; failure to join her as executrix is at most a defect of parties waived by failure to raise the question in the trial court either by demurrer (now motion to dismiss) or answer. Delfelder v. Teton Land & Inv. Co., 46 Wyo. 142, 24 P.2d 702, 1933 Wyo. LEXIS 37 (Wyo.), reh'g denied, 46 Wyo. 142, 26 P.2d 153, 1933 Wyo. LEXIS 38 (Wyo. 1933).

Recovery of rents and profits of land held in trust. —

Under this section, executrix and ancillary administratrix were entitled to recover rents and profits of land held in trust for decedent pending settlement of the estate. Cook v. Elmore, 25 Wyo. 393, 171 P. 261, 1918 Wyo. LEXIS 4 (Wyo. 1918).

Tenant estopped from questioning title. —

Tenant of deceased landlord, when sued by administrator for possession, is estopped as against administrator from questioning landlord's title, especially where tenant attorned to administrator. Hitshew v. Rosson, 41 Wyo. 509, 287 P. 316, 1930 Wyo. LEXIS 24 (Wyo. 1930).

Estate liable for income tax in year of distribution. —

Under provisions providing executor or administrator shall receive and account for all income of estate where testator dies without providing for disposition of income of estate, residue of estate being distributed to residuary legatee under decree in August, 1937, the 1937 income which was subject to federal income tax was held taxable to estate and not to residuary legatee. Whitaker v. United States, 44 F. Supp. 484, 1941 U.S. Dist. LEXIS 2244 (D. Wyo. 1941).

Quoted in

Landen v. Production Credit Ass'n, 737 P.2d 1325, 1987 Wyo. LEXIS 455 (Wyo. 1987).

Am. Jur. 2d, ALR and C.J.S. references. —

Rights and liabilities of personal representatives with respect to completion of improvements, 5 ALR2d 1250.

Power of personal representative to repair personal property of estate, 64 ALR2d 857.

§ 2-7-402. Title to decedent's property; subject to administration and payment of debts; priorities.

Except as otherwise provided in this code, when a person dies the title to his property, real and personal, passes to the person to whom it is devised by his last will, or in the absence of such disposition to the persons who succeed to his estate as provided in this code. However all of his property is subject to the possession of the personal representative and to the control of the court for the purposes of administration, sale or other disposition under the provisions of law, and his property, except homestead and other exempt property, is chargeable with the payment of debts and charges against his estate. There is no priority between real and personal property, except as provided in this code or by the will of the decedent.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

Meaning of “this code.” —

The term “this code” seems to mean the Wyoming Probate Code. See § 2-1-101 and notes thereto.

Quoted in

In re Estate of Jones, 770 P.2d 1100, 1989 Wyo. LEXIS 88 (Wyo. 1989).

Cited in

Norman v. Schulte, 107 B.R. 763, 1989 Bankr. LEXIS 2000 (Bankr. D. Wyo. 1989);

George v. Allen (In re Estate of George), 2003 WY 129, 77 P.3d 1219, 2003 Wyo. LEXIS 158 (Wyo. 2003).

§ 2-7-403. Return of inventory of estate by representative; failure to comply; disposition of fines.

1. Every personal representative shall make and return to the court within one hundred twenty (120) days after his appointment a true inventory upon his oath, of all the estate of the decedent, including the homestead, if any, which has come to his possession or knowledge. If the personal representative does not file such inventory within one hundred twenty (120) days, he shall show the court good cause for his delay and the court shall determine whether or not an extension of time shall be allowed. For failure to comply in good faith with the time limitations set forth, the personal representative shall be adjudged in contempt of court, and a fine imposed and other enforcement entered as the court in its discretion determines. Any fine assessed shall be paid into the corpus of the estate.
2. Anything herein to the contrary notwithstanding, in all cases to which W.S. 2-5-101 applies, the inventory shall be filed not more than seventy-five (75) days after the will has been admitted to probate.

History. Laws 1890-91, ch. 70, art. 11, § 1; R.S. 1899, § 4680; C.S. 1910, § 5548; C.S. 1920, § 6821; R.S. 1931, § 88-2301; Laws 1943, ch. 105, § 1; C.S. 1945, § 6-1301; Laws 1949, ch. 75, § 1; W.S. 1957, § 2-153; W.S. 1977, § 2-5-701; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1; 1981, ch. 151, § 2.

Cross references. —

As to duty of appraisers to appraise and divide homestead, see § 2-7-507 .

As to inventory and appraisement when executor is sole legatee, see § 2-11-301 .

Time requirement not to be overlooked. —

In light of §§ 2-2-201 and 2-2-202 , the requirement that an administrator must make and return a true inventory and appraisement within a reasonable time (now 120 days) cannot be lightly overlooked. In re Estate of Haddenham, 358 P.2d 706, 1961 Wyo. LEXIS 72 (Wyo. 1961).

But proceedings not void if failure to comply. —

If the legislature had intended the failure of compliance with this section to render void all proceedings taken by the administrator, there would have been no occasion for the passage of § 2-7-409 .In re Estate of Patrick, 397 P.2d 273, 1964 Wyo. LEXIS 132 (Wyo. 1964).

Removal of personal representative. —

Executors were not subject to removal where they did not file an inventory until eight months after the probate of the will, but a statement, substantially an inventory, was submitted to the heirs after the funeral of the deceased and a similar statement was filed with the petition for probate of the will. In re Estate of Hartt, 75 Wyo. 305, 295 P.2d 985, 1956 Wyo. LEXIS 18 (1956). See § 2-7-409 .

Filing not a proper inventory. —

District court filing entitled “Inventory and Appraisement” did not qualify to be an inventory of all assets as contemplated by this section because it was an appraisal of a single residence owned by the decedent. Hibsman v. Mullen (In re Estate of Hibsman), 287 P.3d 757, 2012 WY 139, 2012 Wyo. LEXIS 144 (Oct 31, 2012).

Probate court has power to order correction of inventory. Security-First Nat'l Bank v. King, 46 Wyo. 59, 23 P.2d 851, 1933 Wyo. LEXIS 32 (Wyo. 1933).

Cited in

Hibsman v. State, 2015 WY 122, 2015 Wyo. LEXIS 137 (Sept. 15, 2015).

Law reviews. —

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part II,” VIII Land & Water L. Rev. 187 (1973).

§ 2-7-404. Report of appraisal; verification of values of estate assets.

1. Within one hundred twenty (120) days after the timely filing by the personal representative of the inventory of assets of the estate of the decedent, pursuant to W.S. 2-7-403 , the personal representative shall file under oath a report of appraisal of values of estate assets listed in the inventory. The report shall be in compliance with such of the following requirements as may be applicable:
   1. As to all assets listed in the inventory which have a readily determinable market value, the value of each asset as of date of death shall be stated in writing by one (1) disinterested person;
   2. As to all assets listed in the inventory that do not have a readily determinable market value, the personal representative shall employ disinterested persons to determine the fair market value of each such asset, as of the date of death. A separate written report as to the value of each asset, showing the appraiser’s basis for arriving at the value, shall be attached to the report.
2. Different persons may be employed to appraise or determine the value of different assets included in the estate.
3. The report, with any attachments required by this section, shall be filed with the clerk of court.
4. The amount of the fee to be paid to any appraiser, or any person making the required statement, shall be within the discretion of the personal representative, subject only to the provisions of W.S. 2-7-802(a) as to reasonableness and approval at the hearing of the final report and accounting of the personal representative.

History. Laws 1890-91, ch. 70, art. 11, § 2; R.S. 1899, § 4681; C.S. 1910, § 5549; C.S. 1920, § 6822; Laws 1931, ch. 73, § 126; R.S. 1931, § 88-2302; C.S. 1945, § 6-1302; W.S. 1957, § 2-154; Laws 1967, ch. 85, § 1; W.S. 1977, § 2-5-702; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1; 1981, ch. 151, § 2; 1985, ch. 15, § 1.

Filing and verification of inventory required. —

An executor or administrator is required to file an inventory of the property of the estate and to subscribe an oath that it contains a true statement of all the estate of the decedent including claims the decedent may have had against the executor or administrator. Security-First Nat'l Bank v. King, 46 Wyo. 59, 23 P.2d 851, 1933 Wyo. LEXIS 32 (Wyo. 1933) (decided under former § 2-7-406).

Cited in

TZ Land & Cattle Co. v. Grieve, 887 P.2d 511, 1994 Wyo. LEXIS 163 (Wyo. 1994); Hibsman v. State, 2015 WY 122, 2015 Wyo. LEXIS 137 (Sept. 15, 2015).

Law reviews. —

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part II,” VIII Land & Water L. Rev. 187 (1973).

§§ 2-7-405 and 2-7-406. [Repealed.]

Repealed by Laws 1985, ch. 15, § 2.

Cross references. —

For present provisions as to appraisers, see § 2-7-404 .

As to officers authorized to administer oaths generally, see § 1-2-102 .

As to right of personal representative to information as to affairs of partnership of which decedent was member, see § 17-21-403.

Editor's notes. —

These sections, which derived from Laws 1890-91, ch. 70, art. 11, §§ 3, 6, related to oaths of appraisers and form, signing, verification, and filing of appraisements.

§ 2-7-407. Effect of naming debtor as personal representative.

The naming of a debtor as personal representative does not discharge him from any just claim which the testator has against him. The claim shall be included in the inventory and the personal representative is liable for the same when the debt or demand becomes due.

History. Laws 1890-91, ch. 70, art. 11, § 4; R.S. 1899, § 4683; C.S. 1910, § 5551; C.S. 1920, § 6824; R.S. 1931, § 88-2304; C.S. 1945, § 6-1304; W.S. 1957, § 2-156; W.S. 1977, § 2-5-704; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Section modifies common law. —

At common law the appointment of one's debtor as executor was held to extinguish the debt. Since a man could not give his property away to the prejudice of his creditors, it was further held that, if necessary for the payment of the debts of the testator, the antecedent debt of an executor could be reached in equity. But the main rule was early disapproved in the United States, and statutes were enacted in many jurisdictions to abolish it. That situation is true in Wyoming, which enacted this section. State Use of Frederick v. Allen, 42 Wyo. 290, 42 Wyo. 296, 294 P. 681, 1930 Wyo. LEXIS 53 (Wyo. 1930).

This section was enacted for the sole purpose of changing the common-law rule as to an executor-debtor and to make certain that the common-law rule controlling administrators and other trustees, whereby the assets would be available to the persons entitled thereto, would be applied to executors. State Use of Frederick v. Allen, 42 Wyo. 290, 42 Wyo. 296, 294 P. 681, 1930 Wyo. LEXIS 53 (Wyo. 1930).

§ 2-7-408. Discharge or bequest of debt or demand not valid against creditors.

The discharge or bequest in a will of any debt or demand of the testator against the personal representative named or any other person is not valid against the creditors of the decedent, but is a specific bequest of the debt or demand. It shall be included in the inventory and if necessary applied in the payment of the debts. If not necessary for that purpose, it shall be paid in the same manner and proportion as other specific legacies.

History. Laws 1890-91, ch. 70, art. 11, § 5; R.S. 1899, § 4684; C.S. 1910, § 5552; C.S. 1920, § 6825; R.S. 1931, § 88-2305; C.S. 1945, § 6-1305; W.S. 1957, § 2-157; W.S. 1977, § 2-5-705; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

§ 2-7-409. Failure to file inventory or appraisement.

If a personal representative neglects or refuses to file either the inventory or appraisement within the time prescribed or within such further time which the court shall for reasonable cause allow, the court or commissioner may, upon notice, in addition to all other remedies and penalties provided in this code, revoke the letters and the personal representative is liable on his bond for any injury to the estate or rights of any person interested therein arising from such failure.

History. Laws 1890-91, ch. 70, art. 11, § 7; R.S. 1899, § 4686; C.S. 1910, § 5554; C.S. 1920, § 6827; R.S. 1931, § 88-2307; Laws 1943, ch. 105, § 2; C.S. 1945, § 6-1307; W.S. 1957, § 2-159; W.S. 1977, § 2-5-707; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

As to return of inventory and filing of appraisement of estate, see §§ 2-7-403 and 2-7-404 .

Meaning of “this code.” —

The term “this code” seems to mean the Wyoming Probate Code. See § 2-1-101 and notes thereto.

Discretion of court. —

Whether the cause shown, as provided for in this section, be good or bad is a matter largely within the discretion of the trial court; when that court has investigated the question and adjudicated upon it, it will only be where a gross abuse of discretion has occurred that the supreme court will interfere. In re Estate of Haddenham, 358 P.2d 706, 1961 Wyo. LEXIS 72 (Wyo. 1961).

Where the administrator had neither made nor returned a true inventory or appraisement within a period of ample time to have done so, and had presented no reasonable excuse for his failure to comply with the law, there was no abuse of discretion in the district court entering an order to remove him. In re Estate of Haddenham, 358 P.2d 706, 1961 Wyo. LEXIS 72 (Wyo. 1961).

Removal of executor requires stronger showing than for removalof administrator. —

Generally speaking, removal of an executor requires a stronger showing than the removal of an administrator, weight being given to the maxim, “Whom the testator will trust, so will the law.” In re Estate of Haddenham, 358 P.2d 706, 1961 Wyo. LEXIS 72 (Wyo. 1961).

Law reviews. —

See “The Curative Act and the Probate Code,” 3 Wyo. L.J. 204.

§ 2-7-410. Appraisement of after-discovered property; filing; enforcement.

Whenever property not mentioned in any inventory comes to the possession or knowledge of the personal representative, he shall cause the same to be appraised in the manner prescribed and an appraisement thereof filed within one (1) month after the discovery. The making of the appraisement may be enforced, after notice, by any and all remedies provided by this code.

History. Laws 1890-91, ch. 70, art. 11, § 8; R.S. 1899, § 4687; C.S. 1910, § 5555; C.S. 1920, § 6828; R.S. 1931, § 88-2308; Laws 1943, ch. 105, § 3; C.S. 1945, § 6-1308; W.S. 1957, § 2-160; W.S. 1977, § 2-5-708; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Meaning of “this code.” —

The term “this code” seems to mean the Wyoming Probate Code. See § 2-1-101 and notes thereto.

Probate court has power to order and enforce correction of inventory. Security-First Nat'l Bank v. King, 46 Wyo. 59, 23 P.2d 851, 1933 Wyo. LEXIS 32 (Wyo. 1933).

Law reviews. —

See “The Curative Act and the Probate Code,” 3 Wyo. L.J. 204.

§ 2-7-411. Liability for embezzlement or alienation of monies before letters granted.

If any person, before the granting of letters embezzles or alienates any of the monies, goods, chattels or effects of a decedent he is chargeable therewith and liable to an action by the personal representative of the estate for double the value of the property embezzled or alienated, for the benefit of the estate.

History. Laws 1890-91, ch. 70, art. 12, § 1; R.S. 1899, § 4689; C.S. 1910, § 5557; C.S. 1920, § 6830; R.S. 1931, § 88-2401; C.S. 1945, § 6-1401; W.S. 1957, § 2-162; W.S. 1977, § 2-5-710; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

As to defaulting fiduciaries, see § 2-3-127 et seq.

As to penalty for administering estate without proving will or taking out letters, see § 2-7-102 .

As to examination of person suspected of defrauding wards or concealing property, in connection with guardian and ward, see § 3-1-104 .

Alienation of property must be wrongful. —

Person to be subject to statutory liability for “alienating” property of estate must have wrongfully transferred the property. Delfelder v. Poston, 42 Wyo. 176, 293 P. 354, 1930 Wyo. LEXIS 48 (Wyo. 1930).

No liability in good faith purchase. —

Where defendants purchased mortgaged property of deceased in good faith before administration, resulting in reduction of mortgage in excess of value of property, they were not liable for double damages. Delfelder v. Poston, 42 Wyo. 176, 293 P. 354, 1930 Wyo. LEXIS 48 (Wyo. 1930).

Relation to other law. —

Person who was appointed to administer a decedent's estate established that she had liquidated damages in the amount of $ 74,071 against a Chapter 13 debtor who was originally appointed to administer the decedent's estate, and that she was entitled to seek twice that amount under Wyo. Stat. Ann. §§ 2-7-411 and 2-7-413(b) based on her claim that the debtor stole money from the estate, and when the resulting amount of $ 148,143 was added to the figure of $ 184,456 the debtor and another debtor claimed as unsecured debt, the sum exceeded the threshold amount set by 11 U.S.C.S. § 109(e) for obtaining relief under Chapter 13 of the Bankruptcy Code. As such, the bankruptcy court erred when it overruled the administrator's objection to the debtors' plan for paying their creditors. Kanke v. Adams (In re Adams), 373 B.R. 116, 2007 Bankr. LEXIS 3335 (B.A.P. 10th Cir. 2007).

Am. Jur. 2d, ALR and C.J.S. references. —

Penal or remedial nature of statutes imposing liability for double the value of property of decedent embezzled, alienated, converted, or the like, before granting of administration or letters testamentary, 29 A.L.R.2d 244.

§ 2-7-412. Citation to persons suspected of having concealed monies; generally.

If any personal representative or other person interested in the estate of a decedent complains to the court in writing, verified by oath, that any person is suspected of having concealed, embezzled, smuggled, conveyed away or disposed of any monies, goods or chattels of the decedent or in which he had an interest, or has in his possession or knowledge any deeds, conveyances, bonds, contracts or other writings which contain evidence of or tend to disclose the right, title, interest or claim of the decedent to any real or personal estate or any claim or demand, or any lost will, the court shall cite the person to appear before the court and shall examine him on oath upon the matter of the complaint. If the person is not in the county where the decedent died or where letters have been granted he may be cited and examined either before the court of the county where he is found or before the court of the county where the decedent died or where letters have been granted. But if in the latter case he appears and is found innocent his necessary expenses shall be allowed him out of the estate.

History. Laws 1890-91, ch. 70, art. 12, § 2; R.S. 1899, § 4690; C.S. 1910, § 5558; C.S. 1920, § 6831; R.S. 1931, § 88-2402; C.S. 1945, § 6-1402; W.S. 1957, § 2-163; W.S. 1977, § 2-5-711; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

As to defaulting fiduciaries generally, see § 2-3-136 et seq.

For duty of custodian to deliver will to court or executor, see § 2-6-119 .

As to examination of persons suspected of defrauding wards or concealing property, in connection with guardian and ward, see § 3-1-104 .

Application for order for examination as to assets must be filed and time for objection allowed. State ex rel. Poston v. District Court, 31 Wyo. 413, 227 P. 378, 1924 Wyo. LEXIS 35 (Wyo. 1924).

But failure to file held not to warrant prohibition. —

Failure to file application for order held not to warrant issuance of writ of prohibition by supreme court. State ex rel. Poston v. District Court, 31 Wyo. 413, 227 P. 378, 1924 Wyo. LEXIS 35 (Wyo. 1924).

Hardship held not controlling issue in prohibition. —

Hardship on petitioners in submitting to examination has been held not controlling in issuance of writ of prohibition. State ex rel. Poston v. District Court, 31 Wyo. 413, 227 P. 378, 1924 Wyo. LEXIS 35 (Wyo. 1924).

Notice given by citation. —

Section 2-2-306 , providing for giving of notice by citation, is applicable in a proceeding under this section requiring persons believed to be in possession of a decedent's property to submit to examination touching such property, since no mode as to giving notice is provided. State ex rel. Poston v. District Court, 31 Wyo. 413, 227 P. 378, 1924 Wyo. LEXIS 35 (Wyo. 1924).

Objection to service should be made in lower court. State ex rel. Poston v. District Court, 31 Wyo. 413, 227 P. 378, 1924 Wyo. LEXIS 35 (Wyo. 1924).

And to jurisdiction. —

Failure to object to jurisdiction is not excused because proceedings were ex parte. State ex rel. Poston v. District Court, 31 Wyo. 413, 227 P. 378, 1924 Wyo. LEXIS 35 (Wyo. 1924).

Cited in

Hibsman v. Mullen (In re Estate of Hibsman), 2012 WY 139, 2012 Wyo. LEXIS 144 (Oct 31, 2012).

Law reviews. —

See “The Curative Act and the Probate Code,” 3 Wyo. L.J. 204.

§ 2-7-413. Citation to persons suspected of having concealed monies; failure to appear or answer; disclosure order; proceedings generally.

1. If the person cited refuses to appear and submit to an examination or to answer interrogatories put to him touching the matters of complaint, the court may commit him to the county jail until he submits to the order of the court or is discharged according to law. If upon examination it appears that he has concealed, embezzled, smuggled, conveyed away or disposed of any monies, goods or chattels of the decedent or has in his possession or knowledge any deeds, conveyances, bonds, contracts or other writings containing evidence of or tending to disclose the right, title, interest or claim of the decedent to any real or personal estate, claim or demand, or any lost will of the decedent, an order may be made requiring the person to disclose his knowledge thereof to the personal representative and he may be committed to the county jail until the order is complied with or he is discharged according to law.
2. All interrogatories and answers shall be in writing, signed by the party examined and filed in the court. The order for disclosure made upon the examination is prima facie evidence of the right of the personal representative to the property in any action brought for the recovery thereof. Any judgment recovered shall be for double the value of the property as assessed by the court, or for return of the property and damages in addition thereto equal to the value of the property. In addition to the examination of the party, witnesses may be produced and examined on either side.

History. Laws 1890-91, ch. 70, art. 12, § 3; R.S. 1899, § 4691; C.S. 1910, § 5559; C.S. 1920, § 6832; R.S. 1931, § 88-2403; C.S. 1945, § 6-1403; W.S. 1957, § 2-164; W.S. 1977, § 2-5-712; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

As to examination of persons suspected of defrauding wards or concealing property, in connection with guardian and ward, see § 3-1-104 .

Relation to other law. —

Person who was appointed to administer a decedent's estate established that she had liquidated damages in the amount of $ 74,071 against a Chapter 13 debtor who was originally appointed to administer the decedent's estate, and that she was entitled to seek twice that amount under Wyo. Stat. Ann. §§ 2-7-411 and 2-7-413(b) based on her claim that the debtor stole money from the estate, and when the resulting amount of $ 148,143 was added to the figure of $ 184,456 the debtor and another debtor claimed as unsecured debt, the sum exceeded the threshold amount set by 11 U.S.C.S. § 109(e) for obtaining relief under Chapter 13 of the Bankruptcy Code. As such, the bankruptcy court erred when it overruled the administrator's objection to the debtors' plan for paying their creditors. Kanke v. Adams (In re Adams), 373 B.R. 116, 2007 Bankr. LEXIS 3335 (B.A.P. 10th Cir. 2007).

Cited in

State ex rel. Poston v. District Court, 31 Wyo. 413, 227 P. 378, 1924 Wyo. LEXIS 35 , 35 A.L.R. 1082 (1924).

Law reviews. —

See “The Curative Act and the Probate Code,” 3 Wyo. L.J. 204.

§ 2-7-414. Citation of persons entrusted with monies for accounting.

Upon the complaint on oath of any personal representative, the court shall cite any person who has been entrusted with any part of the estate of the decedent to appear before the court and require him to render a full account of any monies, goods, chattels, bonds, accounts or other property or papers belonging to the estate which have come to his possession in trust for the personal representative, and of his proceedings thereon. If the person cited refuses to appear and render the account he shall be proceeded against as provided in W.S. 2-7-413 .

History. Laws 1890-91, ch. 70, art. 12, § 4; R.S. 1899, § 4692; C.S. 1910, § 5560; C.S. 1920, § 6833; R.S. 1931, § 88-2404; C.S. 1945, § 6-1404; W.S. 1957, § 2-165; W.S. 1977, § 2-5-713; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

As to examination of persons suspected of defrauding wards or concealing property, in connection with guardian and ward, see § 3-1-104 .

Cited in

State ex rel. Poston v. District Court, 31 Wyo. 413, 227 P. 378, 1924 Wyo. LEXIS 35 , 35 A.L.R. 1082 (1924); Hibsman v. Mullen (In re Estate of Hibsman), 2012 WY 139, 2012 Wyo. LEXIS 144 (Oct 31, 2012).

Law reviews. —

See “The Curative Act and the Probate Code,” 3 Wyo. L.J. 204.

§ 2-7-501. Right to homestead and support; “homestead” defined.

1. When a person dies leaving a spouse or minor children, the spouse or minor children are entitled to remain in possession of the homestead, all wearing apparel of the family, and all household furniture of the decedent until letters are granted and the inventory is returned. The widow or minor children are also entitled to a reasonable provision for their support, to be allowed by the court.
2. When any person dies seized of a homestead, leaving a spouse or minor children, the spouse or minor children are entitled to the homestead. If there is neither spouse nor minor children the homestead is liable for the debts of the decedent.
3. “Homestead” includes that property referred to in W.S. 2-7-507 to the extent in value stated in W.S. 2-7-508 .

History. Laws 1890-91, ch. 70, art. 13, § 1; R.S. 1899, § 4733; C.S. 1910, § 5602; Laws 1919, ch. 20, § 1; C.S. 1920, § 6876; R.S. 1931, § 88-2901; C.S. 1945, § 6-1501; W.S. 1957, § 2-210; W.S. 1977, § 2-6-101 ; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

As to absolute property of surviving spouse and minor children, see § 2-7-504 and notes thereto.

Weight of California decisions. —

Since this section and § 2-7-503 were taken from California statutes, the Wyoming supreme court is inclined to adopt construction of those statutes by courts of that state. In re Estate of Dixon, 73 Wyo. 236, 278 P.2d 258, 1954 Wyo. LEXIS 19 , 50 A.L.R.2d 1240 (1954). See also notes to § 2-1-102 .

Widow's interest held consistent with her right to possessionas executrix. —

Widow, sole devisee and executrix of husband's estate, maintaining an action individually in ejectment involving title and right to possession of lands she claimed as homestead, had interest therein consistent with present rights to possession in her representative capacity. Delfelder v. Teton Land & Inv. Co., 46 Wyo. 142, 24 P.2d 702, 1933 Wyo. LEXIS 37 (Wyo.), reh'g denied, 46 Wyo. 142, 26 P.2d 153, 1933 Wyo. LEXIS 38 (Wyo. 1933).

Allowance temporary and expires with return of inventory. —

Allowance made under this section and § 2-7-503 is temporary, awaiting time when inventory is returned, so that court may thereafter act with better understanding; and order made before return of inventory expires with that return, notwithstanding fact that it recites that it shall be in effect until further order of court. In re Estate of Dixon, 73 Wyo. 236, 278 P.2d 258, 1954 Wyo. LEXIS 19 (Wyo. 1954).

But executor may make support payments after inventory withoutorder. —

An executor has the right to make payments to his decedent's widow for her support without an order of the court after the return of the inventory, and the only question is as to whether the amount paid by him is reasonable. That question is largely in the discretion of the trial court. In re Estate of Dixon, 73 Wyo. 236, 278 P.2d 258, 1954 Wyo. LEXIS 19 (Wyo. 1954).

Duration of allowance after inventory and interest on over-payments.—

Where a widow's allowance made under this section was continued after inventory without order of court, it was held that the court should have made her an allowance from the date of death to the time when the executor reported the sale of certain property of the estate and that he had paid a portion of the proceeds to the widow and asked that the widow's allowance be discontinued. Payments made after such objection by the executor were made by mistake, and the widow was not chargeable with interest thereon until discovery of the mistake, that is, until a court determined by final decree what was a reasonable allowance. In re Estate of Dixon, 73 Wyo. 236, 278 P.2d 258, 1954 Wyo. LEXIS 19 (Wyo. 1954).

Allowance deemed deductible in figuring inheritance tax. —

Family allowance, paid during administration, is a proper deduction from amount on which state inheritance tax is to be computed, since, under this section and §§ 2-7-502 and 2-7-503 , it does not pass to widow by will or intestate laws, but is allowed as a matter of public policy. In re Young's Estate, 33 Wyo. 317, 239 P. 286, 1925 Wyo. LEXIS 39 (Wyo. 1925).

Cited in

Ullman v. Abbott, 10 Wyo. 97, 67 P. 467, 1902 Wyo. LEXIS 2 (1902); In re Austin's Estate, 37 Wyo. 313, 261 P. 130, 1927 Wyo. LEXIS 89 (1927); Kelly v. Kilts, 2010 WY 151, 243 P.3d 947, 2010 Wyo. LEXIS 159 (Nov. 23, 2010).

Law reviews. —

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part I,” VII Land & Water L. Rev. 169 (1972).

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part II,” VIII Land & Water L. Rev. 187 (1973).

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part III,” IX Land & Water L. Rev. 567 (1974).

Am. Jur. 2d, ALR and C.J.S. references. —

Allowance in state of decedent's domicile for widow's or children's support as enforceable against decedent's real estate, or proceeds thereof, in another state, 13 ALR2d 973.

Separation agreement as affecting rights to statutory allowance, 34 ALR2d 1020, 34 ALR2d 1039.

Extrajudicial separation as affecting surviving spouse's right to widow's allowance, 34 ALR2d 1056.

Right of nonresident surviving spouse or minor children to allowance of property exempt from administration or to family allowance from local estate of nonresident decedent, 51 ALR2d 1026.

Who is included in term “family” or “household” in statutes relating to family allowance or exemption out of decedent's estate, 88 ALR2d 890.

Amount of allowance from decedent's estate for widow and family where not fixed by statute, 90 ALR2d 687.

Effect of testamentary gift on widow's right to fixed statutory allowance or allowance for support, 97 ALR2d 1319.

Statutory family allowance to minor children as affected by previous agreement or judgment for their support, 6 ALR3d 1387.

Waiver of right to widow's allowance by postnuptial agreement, 9 ALR3d 955.

Eligibility of illegitimate child to receive family allowance out of estate of his deceased father, 12 ALR3d 1140.

§ 2-7-502. Extra allowance for maintenance of family.

If the amount set apart is insufficient for the support of the widow and children, or either, the court shall make such reasonable allowance out of the estate as is necessary for the maintenance of the family according to their circumstances during the settlement of the estate.

History. Laws 1890-91, ch. 70, art. 13, § 2; R.S. 1899, § 4734; C.S. 1910, § 5603; C.S. 1920, § 6877; R.S. 1931, § 88-2902; C.S. 1945, § 6-1502; W.S. 1957, § 2-211; W.S. 1977, § 2-6-102 ; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cross references. —

As to right to homestead, etc., and support, see § 2-7-501 and notes thereto.

As to absolute property of surviving spouse and minor children, see § 2-7-504 and notes thereto.

Cited in

In re Young's Estate, 33 Wyo. 317, 239 P. 286, 1925 Wyo. LEXIS 39 (1925).

§ 2-7-503. Preference and payment of allowances; exceptions.

Allowances made shall be paid in preference to all other charges except funeral expenses and cost of administration. Any such allowance, whenever made, may in the discretion of the court take effect from the death of the decedent. This section shall not be construed so as to invalidate any mortgage or lien of record against decedent’s property.

History. Laws 1890-91, ch. 70, art. 13, § 3; R.S. 1899, § 4735; C.S. 1910, § 5604; C.S. 1920, § 6878; Laws 1931, ch. 73, § 132; R.S. 1931, § 88-2903; C.S. 1945, § 6-1503; W.S. 1957, § 2-212; W.S. 1977, § 2-6-103 ; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cross references. —

As to right to homestead, etc., and support, see § 2-7-501 and notes thereto.

As to absolute property of surviving spouse and minor children, see § 2-7-504 and notes thereto.

Cited in

In re Young's Estate, 33 Wyo. 317, 239 P. 286, 1925 Wyo. LEXIS 39 (1925); Dobler v. Clark, 42 Wyo. 160, 292 P. 246, 1925 Wyo. LEXIS 52 (1930); In re Estate of Dixon, 73 Wyo. 236, 278 P.2d 258, 1954 Wyo. LEXIS 19 , 50 A.L.R.2d 1240 (1954).

Am. Jur. 2d, ALR and C.J.S. references. —

Coexecutor's or coadministrator's liability for defaults or wrongful acts of fiduciary in handling estate, 65 ALR2d 1019.

Right of coexecutor to retain independent legal counsel, 66 ALR2d 1169.

§ 2-7-504. Absolute property of surviving spouse and minor children; exceptions; renouncement of will of no effect.

When any resident of this state dies leaving a spouse or minor children, the court shall set over to the spouse, and if none to the minor children, as their absolute property, all property of the decedent exempt from execution under the exemption laws of this state including the homestead. Such property shall not be subject to the payment of debts of the decedent, except expenses of administration or funeral expenses of the decedent in cases in which there is not other property in the estate sufficient to pay the expenses. If [the] decedent does not have any or all of the property specified under the exemption laws, the spouse or minor children are entitled to the value of the exempt property either in money or other property as they may prefer. If the surviving spouse is not the parent of all or any minor children, one-half (1/2) of the property shall be set over to the surviving spouse and the other one-half (1/2) to the minors who are not children of the survivor. A conservator shall be appointed for the children as in any other cases of estate property descending to a minor. The right of a surviving spouse to any of the exempt property is not affected by his or her renouncing or failing to renounce the benefit of the provisions made for him or her in the will of the decedent.

History. Laws 1919, ch. 28, § 1; C.S. 1920, § 6879; R.S. 1931, § 88-2904; Laws 1943, ch. 8, § 1; C.S. 1945, § 6-1504; W.S. 1957, § 2-213; W.S. 1977, § 2-6-104 ; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1; 1981, ch. 151, § 2.

Cross references. —

As to right of family survivors under the exemption laws, see § 1-20-103 .

As to rights of adopted minors and adults, see § 1-22-114 .

As to rights and liabilities of married persons generally, see §§ 20-1-201 , 20-1-202 .

Constitutionality. —

Where it was contended that this entire section was void because language of the 1943 amendment commencing “Provided that” and ending “minor” conflicted with the first part of the section, the contention was held untenable since that language was the last expression of the legislative will and it would be given effect under the rule that, where particular provisions conflict with general provisions, the particular would govern. In re Edelman's Estate, 68 Wyo. 30, 228 P.2d 408, 1951 Wyo. LEXIS 14 (Wyo. 1951).

Where trial court overruled portion of demurrer (now motion to dismiss) predicated on violations by this section of art. 1, §§ 2, 3 and 34, and art. 3, § 27, Wyo. Const., it did not commit reversible error, since examples of violations suggested were hypothetical and it was not shown that rights of party filing demurrer (now motion to dismiss) were, or were about to be, adversely affected by operation of this section. In re Edelman's Estate, 68 Wyo. 30, 228 P.2d 408, 1951 Wyo. LEXIS 14 (Wyo. 1951).

Widow's nonresidency does not bar right to homestead exemption.—

See Stolldorf v. Stolldorf, 384 P.2d 969, 1963 Wyo. LEXIS 109 (Wyo. 1963).

The legislature without question changed the policy toward nonresidents as laid down in Ullman v. Abbott, 10 Wyo. 97, 67 P. 467, 1902 Wyo. LEXIS 2 (1902), by the enactment of this section, at least insofar as such policy was directed at the probate statutes. Stolldorf v. Stolldorf, 384 P.2d 969, 1963 Wyo. LEXIS 109 (Wyo. 1963).

There can be little doubt that the statutory proviso, “a widow residing in this territory,” was of persuasive force in the decision reached in Ullman v. Abbott, 10 Wyo. 97, 67 P. 467, 1902 Wyo. LEXIS 2 (1902). However, such proviso is no longer found. It was eliminated by ch. 28, Laws 1919, and in its stead this section now provides in part that, “when any resident of this state dies leaving a widower or widow (now “spouse”) …,” he or she shall be entitled to receive substantially the same benefits conferred by the former statute. The shift of the residence requirement from the surviving spouse to the decedent is indeed significant. Stolldorf v. Stolldorf, 384 P.2d 969, 1963 Wyo. LEXIS 109 (Wyo. 1963).

Evidence to establish marriage. —

Testimony of widow and certificate of minister who performed marriage were admissible in probate proceedings to set estate over to the widow. In re St. Clair's Estate, 46 Wyo. 446, 28 P.2d 894, 1934 Wyo. LEXIS 44 (Wyo. 1934).

Widow's testimony and certificate that deceased and widow were married was sufficient to justify setting over to widow the estate property. In re St. Clair's Estate, 46 Wyo. 446, 28 P.2d 894, 1934 Wyo. LEXIS 44 (Wyo. 1934).

Where widow's rights were not involved in heirship proceeding, a motion to declare widow in default was properly overruled. In re St. Clair's Estate, 46 Wyo. 446, 28 P.2d 894, 1934 Wyo. LEXIS 44 (Wyo. 1934).

Children may appear to resist widow's claim. —

Under this section and § 2-7-505 , children of deceased husband may appear to resist widow's claim to homestead and other property. In re Kiesel's Estate, 35 Wyo. 300, 249 P. 81, 1926 Wyo. LEXIS 18 (Wyo. 1926).

Section to be construed with exemption laws. —

Inasmuch as this section pertains to property of a decedent “exempt from execution under the exemption laws of this state,” it is necessary that it be construed along with the applicable exemption laws. Wambeke v. Hopkin, 372 P.2d 470, 1962 Wyo. LEXIS 89 (Wyo. 1962).

It has been held not to contemplate homestead different fromthat under such laws. —

That this section does not contemplate a probate homestead different from the homestead contemplated under the exemption laws is apparent in two ways. First, it is not primarily a “homestead” as such which the statute authorizes to be set over; it is all property of the decedent “exempt from execution,” including the homestead. Second, the value of the homestead referred to in this section is not fixed in the Probate Code; it is fixed in the exemption laws by § 1-20-101 .Wambeke v. Hopkin, 372 P.2d 470, 1962 Wyo. LEXIS 89 (Wyo. 1962). But see § 2-7-508 .

Such laws looked to for property exempt or amount set overin lieu thereof. —

A probate judge necessarily turns to the exemption laws to find what, if any, property is to be set over pursuant to the provisions of this section and to find the value thereof when money or other property is set over in lieu of exempt property. Wambeke v. Hopkin, 372 P.2d 470, 1962 Wyo. LEXIS 89 (Wyo. 1962).

Section means not having specifically exempted property attime of death. —

In this section the phrase “in case decedent shall not have any or all of the property specified under said exemption laws” (now “If decedent does not have any or all of the property specified under the exemption laws”) was used. If the legislature had intended this phrase to mean in case decedent's estate shall not have any or all of the property specified, it should have used the words “decedent's estate” instead of the word “decedent.” However, by use of the word “decedent” the legislature made the phrase “in case decedent shall not have” applicable as of the time of death and not during the process of administration which follows death. Wambeke v. Hopkin, 372 P.2d 470, 1962 Wyo. LEXIS 89 (Wyo. 1962).

And other property or cash may be selected in lieu thereof.—

Where it appears that an estate has no specific property such as is mentioned in the exemption statutes (§ 1-20-101 et seq.), the person entitled, or the court, may select other property in lieu thereof, or cash, up to the amount allowed by law as exempt. In re Edelman's Estate, 68 Wyo. 30, 228 P.2d 408, 1951 Wyo. LEXIS 14 (Wyo. 1951).

Where land cannot be set apart as homestead. —

Ordinarily, where in the nature of things land cannot be set apart as a homestead to the survivors, then the law will make provision for them in lieu thereof. Wambeke v. Hopkin, 372 P.2d 470, 1962 Wyo. LEXIS 89 (Wyo. 1962).

Retention of contingent interest equal to value of homestead.—

See Burnell v. Roush, 404 P.2d 836, 1965 Wyo. LEXIS 148 (Wyo. 1965).

Allowance of one-half of value of homestead to minors not entitledto homestead. —

Without deciding whether this section may be applied differently in the case of minor children who are not children of the surviving spouse, when no part of the homestead goes to them or can be set apart for them, there is sufficient authority in §§ 2-7-501 , 2-7-502 and 2-7-503 , which have to do with rights of the family and extra allowances for the family, to justify and support the allowance to the minor children of one-half of the value of the homestead exemption, in the absence of a contest on that allowance. Wambeke v. Hopkin, 372 P.2d 470, 1962 Wyo. LEXIS 89 (Wyo. 1962).

Homestead right may be abandoned. Goodson v. Smith, 69 Wyo. 439, 243 P.2d 163, 1952 Wyo. LEXIS 12 (Wyo. 1952).

Cited in

Dobler v. Clark, 42 Wyo. 160, 292 P. 246, 1925 Wyo. LEXIS 52 (1930); Campbell v. Prater, 64 Wyo. 293, 191 P.2d 160, 1948 Wyo. LEXIS 6 (1948); Strom v. Felton, 76 Wyo. 370, 302 P.2d 917, 1956 Wyo. LEXIS 48 (1956); Pangarova v. Nichols, 419 P.2d 688, 1966 Wyo. LEXIS 174 (Wyo. 1966).

Law reviews. —

See “Disinheriting a Murderer of an Ancestor,” 8 Wyo. L.J. 132.

For note on homestead exemption in Wyoming, see 16 Wyo. L.J. 81 (1961).

See note, “Wambeke v. Hopkin — A New Lesson in Wyoming Property Rights,” 18 Wyo. L.J. 34 (1963).

See note, “Should Marital Rights Be Protected by Statute?” 19 Wyo. L.J. 14 (1964).

Am. Jur. 2d, ALR and C.J.S. references. —

Rights of surviving spouse and children in proceeds of sale of homestead in decedent's estate, 6 ALR2d 515.

Homestead exemption as extending to rentals derived from homestead property, 40 ALR2d 897.

Operation and effect of antenuptial agreements to waive or bar surviving spouse's right to probate homestead or surviving family's similar homestead right or exemption, 65 ALR2d 727.

Wife as head of family within homestead or other property exemption provision, 67 ALR2d 779.

Estate or interest in real property to which a homestead claim may attach, 74 ALR2d 1355.

Contractual waiver of after acquired homestead exemption, 82 ALR2d 982.

§ 2-7-505. Procedure for setting off exempt property.

Any time during the administration of an estate and after the first publication of notice of opening the probate and the filing of the appraisement, any person interested may file a petition showing the necessary facts and praying to have the exempt property of the estate including the homestead set over to the person or persons entitled thereto. Upon filing of the petition, the court shall require all persons interested to appear on a day certain to show cause why the exempt property should not be set over to the person or persons entitled thereto. The order shall be published once in a newspaper of general circulation in the county in which the probate is pending and a copy of the order to show cause shall be mailed by the personal representative to each heir and beneficiary. The publication and mailing shall be not less than ten (10) days prior to the date set for the hearing. At the time set for the hearing or to which the hearing is continued, the court shall hear the evidence and make such order as the facts and law require. If the whole estate of the decedent is found to be exempt and is set over to the person or persons entitled thereto, no further proceeding is required in the administration of the estate unless further estate is discovered. The publication and notice may be combined with and included in the notice of opening the probate, but the hearing shall not be held less than ten (10) days after the filing of the appraisement.

History. Laws 1919, ch. 28, § 2; C.S. 1920, § 6880; R.S. 1931, § 88-2905; Laws 1943, ch. 105, § 5; C.S. 1945, § 6-1505; W.S. 1957, § 2-214; W.S. 1977, § 2-6-105 ; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Repealing clauses. —

Section 3, ch. 28, Laws 1919, repealed §§ 5605, 5606, 5607, 5608, 5609 and 5610, Wyoming Compiled Statutes 1910.

Children may appear to resist widow's claim. —

Under this section and § 2-7-504 , children of deceased husband may appear to resist widow's claim to homestead and other property. In re Kiesel's Estate, 35 Wyo. 300, 249 P. 81, 1926 Wyo. LEXIS 18 (Wyo. 1926).

Evidence to establish marriage. —

Testimony of widow and certificate of minister who performed marriage were admissible in probate proceedings to set estate over to the widow. In re St. Clair's Estate, 46 Wyo. 446, 28 P.2d 894, 1934 Wyo. LEXIS 44 (Wyo. 1934).

Widow's testimony and certificate that deceased and widow were married was sufficient to justify setting the estate property over to widow. In re St. Clair's Estate, 46 Wyo. 446, 28 P.2d 894, 1934 Wyo. LEXIS 44 (Wyo. 1934).

Where widow's rights were not involved in an heirship proceeding, a motion to declare widow in default was properly overruled. In re St. Clair's Estate, 46 Wyo. 446, 28 P.2d 894, 1934 Wyo. LEXIS 44 (Wyo. 1934).

Applied in

In re Estate of Edelman, 68 Wyo. 30, 228 P.2d 408, 1951 Wyo. LEXIS 14 (1951).

§ 2-7-506. Homestead to be set apart by court; payment of liens or encumbrances.

If the homestead held prior to the death of the decedent is returned in the appraisement at a value not exceeding the value of the homestead exemption provided in W.S. 2-7-508 , the court shall order it set off to the persons entitled thereto. If there are liens or encumbrances on the homestead and if the funds of the estate are adequate to pay all claims against the estate, all claims against the estate and any liens or encumbrances on the homestead, whether filed or presented or not, if known or made known to the personal representative, shall be paid out of the funds. If the funds of the estate are not sufficient for that purpose, liens or encumbrances shall be paid proportionately with other claims allowed, and the liens or encumbrances on the homestead shall only be enforced against the homestead for any deficiency remaining after the payment.

History. Laws 1890-91, ch. 70, art. 13, § 9; R.S. 1899, § 4742; C.S. 1910, § 5611; Laws 1915, ch. 104, § 7; C.S. 1920, § 6881; R.S. 1931, § 88-3001; C.S. 1945, § 6-1506; Laws 1949, ch. 74, § 1; 1951, ch. 11, § 4; W.S. 1957, § 2-215; Laws 1975, ch. 60, § 1; W.S. 1977, § 2-6-106 ; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

As to recordation of judgment or decree, see § 2-2-301 .

As to return of inventory and appraisement of estate, see § 2-7-403 et seq.

Lienholder need not present claim to representative. —

Where husband and wife executed mortgage before husband's death and wife thereafter claimed homestead, which was not divisible and worth over the statutory amount, mortgage holder was not required to present claim to widow as executrix. Delfelder v. Teton Land & Inv. Co., 46 Wyo. 142, 24 P.2d 702, 1933 Wyo. LEXIS 37 (Wyo.), reh'g denied, 46 Wyo. 142, 26 P.2d 153, 1933 Wyo. LEXIS 38 (Wyo. 1933).

Cited in

Closson v. Closson, 30 Wyo. 1, 215 P. 485, 1923 Wyo. LEXIS 30 , 29 A.L.R. 1371 (1923).

§ 2-7-507. Duty of appraisers to appraise and divide homestead.

If the homestead is returned in the appraisement at more than the value of the homestead exemption set forth in W.S. 2-7-508 , the appraisers shall determine whether the premises can be divided without material injury. If they can be divided, the appraisers shall admeasure and set apart to the parties entitled thereto the portion of the premises, including the dwelling house, as will amount in value to the homestead exemption and make report thereof giving the metes, bounds and full description of the portion set apart as a homestead. If the appraisers find that the premises exceed in value the homestead exemption and the premises cannot be divided without material injury, they shall report the finding, and thereafter the court may make an order for the sale of the premises and the distribution of the proceeds to the parties entitled thereto.

History. Laws 1890-91, ch. 70, art. 13, § 10; R.S. 1899, § 4743; C.S. 1910, § 5612; Laws 1915, ch. 104, § 8; C.S. 1920, § 6882; R.S. 1931, § 88-3002; C.S. 1945, § 6-1507; Laws 1951, ch. 11, § 5; W.S. 1957, § 2-216; Laws 1975, ch. 60, § 1; W.S. 1977, § 2-6-107 ; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Lienholder need not present claim to representative. —

Where husband and wife executed mortgage before husband's death and wife thereafter claimed homestead, which was not divisible and worth over the statutory amount, mortgage holder was not required to present claim to widow as executrix. Delfelder v. Teton Land & Inv. Co., 46 Wyo. 142, 24 P.2d 702, 1933 Wyo. LEXIS 37 (Wyo.), reh'g denied, 46 Wyo. 142, 26 P.2d 153, 1933 Wyo. LEXIS 38 (Wyo. 1933).

§ 2-7-508. Amount of homestead exemption.

Wheresoever in the Probate Code the limit of the homestead exemption is established or referred to, the exemption is thirty thousand dollars ($30,000.00).

History. Laws 1915, ch. 104, § 9; C.S. 1920, § 6883; R.S. 1931, § 88-3003; C.S. 1945, § 6-1508; Laws 1951, ch. 11, § 6; W.S. 1957, § 2-217; Laws 1975, ch. 60, § 1; W.S. 1977, § 2-6-108 ; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

As to amount of homestead under the exemption laws, see § 1-20-101 .

For other provisions relating to homestead exemption, see § 1-20-102 et seq.

Meaning of “Probate Code.” —

The term “Probate Code” refers to the Wyoming Probate Code. See § 2-1-101 and notes thereto.

Editor's notes. —

Though this section was originally enacted as part of an act which amended various sections of the Probate Code, it should be noted that, prior to the 1980 revision of title 2, it was ostensibly applicable not only to probate matters but to any case in which a homestead exemption was involved in that it started out by stating “Wheresoever in the statutes …”; however, the 1980 revision substituted the language “Wheresoever in the Probate Code …” at the beginning of the section.

Repealing clauses. —

Section 10, ch. 104, Laws 1915, repealed all laws and parts of laws in conflict therewith.

Law reviews. —

See note, “Should Marital Rights Be Protected by Statute?” 19 Wyo. L.J. 14 (1964).

§ 2-7-509. Costs of proceedings; homestead exempt from claims against estate.

The costs of all proceedings provided for in W.S. 2-7-501 through 2-7-508 shall be paid by the estate as expenses of administration. Persons succeeding by purchase or otherwise to the interests, rights and title of successors to homesteads or to the right to have homesteads set apart to them, shall take the homestead exempt from claims against the estate of the decedent.

History. Laws 1890-91, ch. 70, art. 13, § 13; R.S. 1899, § 4746; C.S. 1910, § 5615; C.S. 1920, § 6886; R.S. 1931, § 88-3004; C.S. 1945, § 6-1509; W.S. 1957, § 2-218; W.S. 1977, § 2-6-109 ; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Am. Jur. 2d, ALR and C.J.S. references. —

Liability for administration expenses of spouse electing against will, 89 ALR3d 315.

§ 2-7-601. When conveyance required; generally.

When a person who is bound by contract in writing to convey any real estate dies before making the conveyance, and in all cases when the decedent, if living, might be compelled to make the conveyance, the court may order his personal representative to convey the real estate to the person entitled thereto.

History. Laws 1890-91, ch. 70, art. 15, § 50; R.S. 1899, § 4817; C.S. 1910, § 5686; C.S. 1920, § 6958; R.S. 1931, § 88-3301; C.S. 1945, § 6-1801; W.S. 1957, § 2-166; W.S. 1977, § 2-5-801; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

As to right of successor to enforce conveyance, see § 2-7-608 and notes thereto.

Procedure not exclusive remedy. —

Unless a statute specifically provides that the proceeding in probate is the exclusive remedy, a court having equitable jurisdiction cannot be deprived of its powers in causes of actions brought for specific performance of contracts to convey land, and § 2-7-601 et seq. does not so mandate. Crockett v. Lowther, 549 P.2d 303, 1976 Wyo. LEXIS 186 (Wyo. 1976).

Nor condition precedent to filing action. —

It is not necessary to pursue the procedure prescribed in § 2-7-601 et seq. as a condition precedent to filing an action. Crockett v. Lowther, 549 P.2d 303, 1976 Wyo. LEXIS 186 (Wyo. 1976).

And purchaser may assert rights without filing claim. —

It is not necessary for a purchaser under a contract to convey realty to file a claim with the personal representative of the decedent in order to assert his rights under the contract. Crockett v. Lowther, 549 P.2d 303, 1976 Wyo. LEXIS 186 (Wyo. 1976).

Jurisdiction of probate court to grant specific performance against estate is limited to cases where decedent was bound by written contract. Poston v. Delfelder, 39 Wyo. 163, 270 P. 1068, 1928 Wyo. LEXIS 93 (Wyo. 1928), reh'g denied, 39 Wyo. 163, 270 P. 1068, 1929 Wyo. LEXIS 55 (Wyo. 1929).

Right to vacate order for conveyance of realty of estate, attacked for want of jurisdiction of subject matter, depended on law applicable in collateral attack on judgment. Poston v. Delfelder, 39 Wyo. 163, 270 P. 1068, 1928 Wyo. LEXIS 93 (Wyo. 1928), reh'g denied, 39 Wyo. 163, 270 P. 1068, 1929 Wyo. LEXIS 55 (Wyo. 1929).

Executrix, if seeking to vacate order authorizing conveyance by estate as representative of unsatisfied creditors, should show that creditors were injuriously affected. Poston v. Delfelder, 39 Wyo. 163, 270 P. 1068, 1928 Wyo. LEXIS 93 (Wyo. 1928), reh'g denied, 39 Wyo. 163, 270 P. 1068, 1929 Wyo. LEXIS 55 (Wyo. 1929).

Executrix, consenting to petition for conveyance of estate, knowing facts, could not, after five years and without claim of fraud or mistake have order authorizing conveyance vacated. Poston v. Delfelder, 39 Wyo. 163, 270 P. 1068, 1928 Wyo. LEXIS 93 (Wyo. 1928), reh'g denied, 39 Wyo. 163, 270 P. 1068, 1929 Wyo. LEXIS 55 (Wyo. 1929).

Jurisdiction to appraise. —

Where only interest which heirs had in land subject to lease and option to purchase was under contract to be paid $1,500, their right to payment was personal property, which followed residence of deceased, and appraisal was properly in county of decedent's death. Black v. Beagle, 59 Wyo. 268, 139 P.2d 439, 140 P.2d 594, 1943 Wyo. LEXIS 14 (Wyo. 1943).

Where administrator was himself responsible for appointment of appraisers, he could not take advantage of irregularity in having land in another county appraised in county where estate was administered, to defeat his administrator's deed. Black v. Beagle, 59 Wyo. 268, 139 P.2d 439, 140 P.2d 594, 1943 Wyo. LEXIS 14 (Wyo. 1943).

Payment to mortgagee as benefit to estate. —

Payment to mortgagee by purchaser for property before applying for conveyance by estate was held no ground for holding estate failed to receive benefit of transaction. Poston v. Delfelder, 39 Wyo. 163, 270 P. 1068, 1928 Wyo. LEXIS 93 (Wyo. 1928), reh'g denied, 39 Wyo. 163, 270 P. 1068, 1929 Wyo. LEXIS 55 (Wyo. 1929).

Effect of right of first refusal. —

Where lessor's contract with lessees involved negative promise not to sell to anyone else without giving lessee right of first refusal, promise ran with the land and operated as a restraint on alienation in hands of those who succeeded to the title upon the lessor's death, the lessor's heirs, who had right to fix purchase price. In re Rigby's Estate, 62 Wyo. 401, 167 P.2d 964, 1946 Wyo. LEXIS 10 (Wyo. 1946).

Equitable title held to vest in grantee's heirs. —

While legal title attempted to be conveyed by administrator's deed to grantee who died before deed was executed was void, consideration paid being retained and disposed of as assets of estate, equitable title vested in deceased grantee's heirs. Black v. Beagle, 59 Wyo. 268, 139 P.2d 439, 140 P.2d 594, 1943 Wyo. LEXIS 14 (Wyo. 1943).

Adverse possession by heirs. —

Former owner's heirs could not defeat title by adverse possession where purchasers from grantee and heirs of deceased grantee named in administrator's deed had been in exclusive possession for over 10 years, paying taxes and making improvements, on ground heirs were co-tenants as to half interest because one grantee died before deed was executed. Black v. Beagle, 59 Wyo. 268, 139 P.2d 439, 140 P.2d 594, 1943 Wyo. LEXIS 14 (Wyo. 1943).

Estoppel of heir acting as administrator. —

Heir who as administrator conveyed realty belonging to estate is estopped in his personal capacity as to what is done in his representative capacity. Black v. Beagle, 59 Wyo. 268, 139 P.2d 439, 140 P.2d 594, 1943 Wyo. LEXIS 14 (Wyo. 1943).

As to exercise of option. —

Where administrator of former owner's estate conceded deed he executed pursuant to option given by decedent is valid as to undivided one-half interest conveyed to one of two named grantees, he could not contend that option in lease, though properly exercised as to that one, was not timely exercised as to the other. Black v. Beagle, 59 Wyo. 268, 139 P.2d 439, 140 P.2d 594, 1943 Wyo. LEXIS 14 (Wyo. 1943).

Inadequacy of price. —

Where difference in price may be accounted for, at least in part, by additional improvements during leasehold, fact property was sold by grantees for $5,000 after conveyance to them for $1,500, did not show inadequacy of price invalidating administrator's deed. Black v. Beagle, 59 Wyo. 268, 139 P.2d 439, 140 P.2d 594, 1943 Wyo. LEXIS 14 (Wyo. 1943).

Notarization by administrator's attorney. —

Where attorney of administrator notarized papers executed by him, his so doing was at most an irregularity of which administrator could not take advantage to invalidate administrator's deed. Black v. Beagle, 59 Wyo. 268, 139 P.2d 439, 140 P.2d 594, 1943 Wyo. LEXIS 14 (Wyo. 1943).

Standard of review. —

The probate court's findings are presumed correct and will stand unless clearly erroneous or inconsistent with the evidence or contrary to the great weight of the evidence. In re Estate of Jackson, 892 P.2d 786, 1995 Wyo. LEXIS 45 (Wyo. 1995).

Quoted in

In re Estate of Frederick, 599 P.2d 550, 1979 Wyo. LEXIS 442 (Wyo. 1979).

Am. Jur. 2d, ALR and C.J.S. references. —

Right of personal representatives of leaseholder to enforce option to purchase contained in lease, 45 ALR2d 1034, superseding subdivision 2 thereof.

§ 2-7-602. When conveyance required; time and place for hearing; notice.

On presentation of a verified petition by any person claiming to be entitled to the conveyance from a personal representative setting forth the facts upon which the claim is predicated, the court shall appoint a time and place for hearing the petition and notice thereof shall be personally served on the personal representative.

History. Laws 1890-91, ch. 70, art. 15, § 51; R.S. 1899, § 4818; C.S. 1910, § 5687; C.S. 1920, § 6959; R.S. 1931, § 88-3302; C.S. 1945, § 6-1802; W.S. 1957, § 2-167; W.S. 1977, § 2-5-802; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

As to when conveyance required, see § 2-7-601 and notes thereto.

Provisions not exclusive. —

Provisions of this section and § 2-7-606 are not by their terms made exclusive, and a personal representative may be directed to specifically perform a contract for the sale of real estate in a court of equity. Keystone Sheep Co. v. Grear, 72 Wyo. 189, 263 P.2d 138, 1953 Wyo. LEXIS 42 (Wyo. 1953).

Cited in

Poston v. Delfelder, 39 Wyo. 163, 270 P. 1068, 1928 Wyo. LEXIS 93 (1928); In re Estate of Frederick, 599 P.2d 550, 1979 Wyo. LEXIS 442 (Wyo. 1979).

Law reviews. —

See “The Curative Act and the Probate Code,” 3 Wyo. L.J. 204.

§ 2-7-603. When conveyance required; hearing.

At the hearing all persons interested in the estate may appear and contest the petition by filing their objections in writing. The court may examine, on oath, the petitioner and all before him for that purpose.

History. Laws 1890-91, ch. 70, art. 15, § 52; R.S. 1899, § 4819; C.S. 1910, § 5688; C.S. 1920, § 6960; R.S. 1931, § 88-3303; C.S. 1945, § 6-1803; W.S. 1957, § 2-168; W.S. 1977, § 2-5-803; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cross references. —

As to when conveyance required, see § 2-7-601 and notes thereto.

Cited in

Poston v. Delfelder, 39 Wyo. 163, 270 P. 1068, 1928 Wyo. LEXIS 93 (1928); In re Estate of Frederick, 599 P.2d 550, 1979 Wyo. LEXIS 442 (Wyo. 1979).

§ 2-7-604. When conveyance required; order for conveyance; journal entry.

If after hearing and examination of the claim the court is satisfied the petitioner is entitled to a conveyance of the real estate described in the petition, an order directing the personal representative to execute a conveyance thereof to the petitioner shall be made and entered on the journal of the court.

History. Laws 1890-91, ch. 70, art. 15, § 53; R.S. 1899, § 4820; C.S. 1910, § 5689; C.S. 1920, § 6961; R.S. 1931, § 88-3304; C.S. 1945, § 6-1804; W.S. 1957, § 2-169; W.S. 1977, § 2-5-804; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cross references. —

As to when conveyance required, see § 2-7-601 and notes thereto.

Right to conveyance when contract not unconscionable. —

Where contract cannot, as a matter of law, be found unconscionable, the petitioner is entitled to a conveyance of the real estate described in the petition. In re Estate of Frederick, 599 P.2d 550, 1979 Wyo. LEXIS 442 (Wyo. 1979) (lease and option to purchase).

Cited in

Poston v. Delfelder, 39 Wyo. 163, 270 P. 1068, 1928 Wyo. LEXIS 93 (1928).

§ 2-7-605. When conveyance required; execution.

The personal representative shall execute the conveyance according to the directions of the order.

History. Laws 1890-91, ch. 70, art. 15, § 54; R.S. 1899, § 4821; C.S. 1910, § 5690; C.S. 1920, § 6962; R.S. 1931, § 88-3305; C.S. 1945, § 6-1805; W.S. 1957, § 2-170; W.S. 1977, § 2-5-805; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

As to when conveyance required, see § 2-7-601 and notes thereto.

Cited in

Poston v. Delfelder, 39 Wyo. 163, 270 P. 1068, 1928 Wyo. LEXIS 93 (1928).

§ 2-7-606. When conveyance required; dismissal of petition; specific performance.

If upon hearing the right of the petitioner to have specific performance of the contract is found to be doubtful, the court shall dismiss the petition without prejudice to the right of the petitioner, who may at any time within two (2) months thereafter proceed by action to enforce specific performance thereof.

History. Laws 1890-91, ch. 70, art. 15, § 55; R.S. 1899, § 4822; C.S. 1910, § 5691; C.S. 1920, § 6963; R.S. 1931, § 88-3306; Laws 1943, ch. 105, § 9; C.S. 1945, § 6-1806; W.S. 1957, § 2-171; W.S. 1977, § 2-5-806; Laws 1979, ch. 142, § 3; 1980, ch. 54, § 1.

Cross references. —

As to when conveyance required, see § 2-7-601 and notes thereto.

Provisions not exclusive. —

Provisions of § 2-7-602 and this section are not by their terms made exclusive, and a personal representative may be directed to specifically perform a contract for the sale of real estate in a court of equity. Keystone Sheep Co. v. Grear, 72 Wyo. 189, 263 P.2d 138, 1953 Wyo. LEXIS 42 (Wyo. 1953).

Mere increase in value of land does not invalidate contract and provide justification for denying specific performance. In re Estate of Frederick, 599 P.2d 550, 1979 Wyo. LEXIS 442 (Wyo. 1979).

Cited in

Poston v. Delfelder, 39 Wyo. 163, 270 P. 1068, 1928 Wyo. LEXIS 93 (1928).

§ 2-7-607. When conveyance required; title to pass.

Every conveyance made in pursuance of an order or decree as provided in W.S. 2-7-601 or 2-7-604 shall pass title to the estate contracted for as fully as if the contracting party himself was still living and executed the conveyance.

History. Laws 1890-91, ch. 70, art. 15, § 56; R.S. 1899, § 4823; C.S. 1910, § 5692; C.S. 1920, § 6964; R.S. 1931, § 88-3307; C.S. 1945, § 6-1807; W.S. 1957, § 2-172; W.S. 1977, § 2-5-807; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

As to when conveyance required, see § 2-7-601 and notes thereto.

Cited in

Poston v. Delfelder, 39 Wyo. 163, 270 P. 1068, 1928 Wyo. LEXIS 93 (1928).

§ 2-7-608. When conveyance required; right of successor to enforce.

If the person entitled to the conveyance dies before the commencement or completion of proceedings therefor, any person entitled to succeed to his rights in the contract, or the personal representative of the decedent, may, for the benefit of the person so entitled, commence the proceedings or prosecute any already commenced. The conveyance shall be so made as to vest the estate in the person entitled to it or in the personal representative for his benefit.

History. Laws 1890-91, ch. 70, art. 15, § 57; C.S. 1899, § 4824; C.S. 1910, § 5693; C.S. 1920, § 6965; R.S. 1931, § 88-3308; C.S. 1945, § 6-1808; W.S. 1957, § 2-173; W.S. 1977, § 2-5-808; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Cross references. —

As to when conveyance required, see § 2-7-601 and notes thereto.

Jurisdiction to appraise. —

Where only interest which heirs had in land subject to lease and option to purchase was under contract to be paid $1,500, their right to payment was personal property, which followed residence of deceased, and appraisal was properly in county of decedent's death. Black v. Beagle, 59 Wyo. 268, 139 P.2d 439, 140 P.2d 594, 1943 Wyo. LEXIS 14 (Wyo. 1943).

Where administrator was himself responsible for appointment of appraisers he could not take advantage of irregularity in having land in another county appraised in county where estate was administered to defeat his administrator's deed. Black v. Beagle, 59 Wyo. 268, 139 P.2d 439, 140 P.2d 594, 1943 Wyo. LEXIS 14 (Wyo. 1943).

Administrator of deceased vendee cannot maintain action to compel specific performance for conveyance. Boburg v. Prahl, 3 Wyo. 325, 23 P. 70, 1890 Wyo. LEXIS 6 (Wyo. 1890).

Equitable title held to vest in grantee's heirs. —

While legal title attempted to be conveyed by administrator's deed to grantee who died before deed was executed was void, consideration paid being retained and disposed of as assets of estate, equitable title vested in deceased grantee's heirs. Black v. Beagle, 59 Wyo. 268, 139 P.2d 439, 140 P.2d 594, 1943 Wyo. LEXIS 14 (Wyo. 1943).

Adverse possession by heirs. —

Former owner's heirs could not defeat title by “adverse possession” where purchasers from grantee and heirs of deceased grantee named in administrator's deed had been in exclusive possession for over 10 years paying taxes and making improvements, on ground heirs were co-tenants as to half interest because one grantee died before deed was executed. Black v. Beagle, 59 Wyo. 268, 139 P.2d 439, 140 P.2d 594, 1943 Wyo. LEXIS 14 (Wyo. 1943).

Exercise of option. —

Where administrator of former owner's estate conceded deed he executed pursuant to option given by decedent is valid as to undivided one-half interest conveyed to one of two named grantees, he could not contend that option in lease though properly exercised as to that one was not timely exercised as to the other. Black v. Beagle, 59 Wyo. 268, 139 P.2d 439, 140 P.2d 594, 1943 Wyo. LEXIS 14 (Wyo. 1943).

Inadequacy of price. —

Where difference in price may be accounted for, at least in part, by additional improvements during leasehold, fact property was sold by grantees for $5,000 after conveyance to them for $1,500 did not show inadequacy of price invalidating administrator's deed. Black v. Beagle, 59 Wyo. 268, 139 P.2d 439, 140 P.2d 594, 1943 Wyo. LEXIS 14 (Wyo. 1943).

Notarization by administrator's attorney. —

Where attorney of administrator notarized papers executed by him, his so doing was at most an irregularity of which administrator could not take advantage to invalidate administrator's deed. Black v. Beagle, 59 Wyo. 268, 139 P.2d 439, 140 P.2d 594, 1943 Wyo. LEXIS 14 (Wyo. 1943).

Cited in

Poston v. Delfelder, 39 Wyo. 163, 270 P. 1068, 1928 Wyo. LEXIS 93 (1928).

§ 2-7-609. When power given in will.

When power to sell, mortgage, lease, pledge or exchange property of the estate is given to any personal representative under the terms of a will, the statutory requirements for such purposes do not apply.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

§ 2-7-610. Equitable conversion; effect thereof.

A testamentary direction to sell real property, or the exercise of a testamentary power of sale of real property constitutes an equitable conversion of real estate into personal property, but shall not affect distribution of the estate under the provisions of the will.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

§ 2-7-611. When real property deemed personalty; when personalty deemed real property.

1. Real property acquired by the personal representative by the completion of foreclosure proceedings or by the forfeiture of real estate contracts after the death of the decedent is deemed to be personal property for the purpose of administration and distribution of the estate.
2. In all cases of sale of real property by a personal representative under order of court, the surplus of the proceeds of sale remaining after the payment of debts and charges is deemed to be real property and shall be disposed of in the same proportions as the real property would have been if it had not been sold.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

§ 2-7-612. Purposes for which realty or personalty may be sold; exempt personal property and homestead.

1. Any real or personal property belonging to the decedent except exempt personal property and the homestead may be sold, mortgaged, pledged, leased or exchanged by the personal representative for any of the following purposes:
   1. The payment of debts and charges against the estate;
   2. The distribution of the estate or any part thereof;
   3. Any other purpose in the best interests of the estate.
2. Exempt personal property under such provisions as the court may direct, if not set off to the surviving spouse or issue may be sold, mortgaged, pledged, leased, or exchanged, if the surviving spouse or issue consents thereto.
3. The homestead, under such provisions as the court may direct, if not set off to the surviving spouse or issue, may be sold, mortgaged, pledged, leased or exchanged.
4. The proceeds from the sale of any exempt personal property or from the sale of the homestead shall be held by the personal representative subject to the rights of the surviving spouse or issue unless the surviving spouse or issue has expressly waived his rights to the proceeds.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

Approval of sale affirmed. —

Appellant heirs presented no evidence that family home had intrinsic value nor that with due diligence some of decedent's property could be located to pay off the estate's debts, and thus the court sustained the trial court's findings that a sale of estate property was proper. George v. Allen (In re Estate of George), 2003 WY 129, 77 P.3d 1219, 2003 Wyo. LEXIS 158 (Wyo. 2003).

§ 2-7-613. Sale of personalty without court order.

Personal property of a perishable nature and personal property for which there is a regularly established market may be sold by the personal representative without order of court.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

§ 2-7-614. Petition to sell; generally.

A petition to sell, mortgage, exchange, pledge or lease any real or personal property shall set forth the reasons for the petition and describe the property involved. It may apply for different authority as to separate parts of the property, or it may apply in the alternative for authority to sell, mortgage, exchange, pledge or lease. Whenever it is for the best interests of the estate, real and personal property of the estate may be sold, mortgaged, exchanged, pledged or leased as a unit.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

Approval of sale affirmed. —

Appellant heirs presented no evidence that family home had intrinsic value nor that with due diligence some of decedent's property could be located to pay off the estate's debts, and thus the court sustained the trial court's findings that a sale of estate property was proper. George v. Allen (In re Estate of George), 2003 WY 129, 77 P.3d 1219, 2003 Wyo. LEXIS 158 (Wyo. 2003).

§ 2-7-615. Petition to sell; notice and hearing; exception; court order.

Upon filing of the petition, the court shall fix the time and place of hearing of the petition, and the personal representative shall give notice of the hearing as provided in W.S. 2-7-205 , but as to personal property and as to the lease of real property not specifically devised for a period of not to exceed one (1) year, the court may hear the petition without notice. In those instances where notice is required, the notice shall state briefly the nature of the petition. At the hearing and upon satisfactory proof the court may order the sale, mortgage, exchange, pledge or lease of the property described or any part thereof at such price and upon such terms and conditions as the court may authorize.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

Beneficiaries of trusts created in will. —

Any beneficiary of a trust created in a will is not a beneficiary under the will for purposes of the notice requirements of §§ 2-7-615 and 2-7-205 .In re Estate of Jones, 782 P.2d 229, 1989 Wyo. LEXIS 242 (Wyo. 1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2587, 110 L. Ed. 2d 268, 1990 U.S. LEXIS 2955 (U.S. 1990).

Approval of sale affirmed. —

Appellant heirs presented no evidence that family home had intrinsic value nor that with due diligence some of decedent's property could be located to pay off the estate's debts, and thus the court sustained the trial court's findings that a sale of estate property was proper. George v. Allen (In re Estate of George), 2003 WY 129, 77 P.3d 1219, 2003 Wyo. LEXIS 158 (Wyo. 2003).

Cited in

In re Estate of Jones, 782 P.2d 229, 1989 Wyo. LEXIS 242 (Wyo. 1989).

§ 2-7-616. Sale subject to mortgage.

When a claim is secured by a mortgage on property, the court, with the consent of the mortgagee, may order the sale of the property subject to the mortgage, and the consent shall release the estate should a deficiency later appear.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

§ 2-7-617. Extension of credit in sales.

In all sales of property, the court may authorize credit to be given by the personal representative on such terms as the court may prescribe. Credit for more than twelve (12) months shall be extended only after hearing pursuant to notice to interested parties.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

§ 2-7-618. Purchase by holder of lien.

At any sale of real or personal property upon which there is a mortgage, pledge or other lien, the holder of the lien may become the purchaser, and may apply the amount of his lien on the purchase price. If no claim thereon has been filed or allowed, the court, at the hearing on the report of sale and for confirmation of the sale, may examine into the validity and enforceability of the lien or charge and the amount due thereunder and secured thereby, and may authorize the personal representative to accept the receipt of the purchaser for the amount due thereunder and secured thereby as payment pro tanto. If the mortgage, pledge or other lien is a valid claim against the estate and has been allowed, the receipt of the purchaser for the amount due him from the proceeds of the sale is a payment pro tanto. If the amount for which the property is purchased, whether or not a claim for it has been filed or allowed, is insufficient to defray the expenses and discharge his mortgage, pledge or other lien, the purchaser shall pay an amount sufficient to pay the balance of the expenses. Nothing permitted under this section shall be deemed to be an allowance of a claim based upon such mortgage, pledge or other lien.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

§ 2-7-619. Bond to prevent sale; liability for breach; effect of compliance.

1. Any person interested in the estate may prevent a sale, mortgage, pledge, exchange or lease of the whole or any part of the real estate or personal property for any purpose by giving bond to the satisfaction of the court, conditioned that he will pay such demands against the estate as the court shall require not to exceed the value of the property thus kept from sale, mortgage, pledge, exchange or lease as soon as called upon by the court for that purpose.
2. If the conditions of the bond are broken the property will be liable for the debts unless it has passed into the hands of innocent purchasers, and the personal representative may take possession thereof and sell it under the direction of the court, or he may prosecute the bond, or pursue both remedies at the same time if the court so directs.
3. If the conditions of the bond are complied with the property shall pass by devise, bequest, distribution or descent as though there had been no debts against the estate.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

§ 2-7-620. Collateral attacks precluded.

No proceedings for sale, mortgage, pledge, lease, exchange or conveyance by a personal representative of property belonging to the estate is subject to collateral attack on account of any irregularity in the proceedings which do not deprive the court of jurisdiction.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

§ 2-7-621. Order for sale, generally.

The order shall describe the property to be sold, mortgaged, pledged, exchanged or leased and may designate the sequence in which the several parcels shall be sold, mortgaged, pledged, exchanged or leased. An order for sale may direct whether the property shall be sold at private sale or public auction, and the place or places of sale. The order of sale may prescribe the terms, conditions and manner of sale. The court may provide for appraisal for its guidance as to value of the property, and determine whether or not additional bond shall be deposited by the personal representative. If real property is to be mortgaged, the order may fix the maximum amount of principal, the earliest and latest dates of maturity and the purposes for which the proceeds shall be used. An order for sale, mortgage, pledge, exchange or lease shall remain in force until terminated by the court.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

§ 2-7-622. Notice of auction required.

In all sales of property at public auction the personal representative shall give notice as provided in W.S. 2-7-202 .

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

§ 2-7-623. Adjournment of sale.

The personal representative may adjourn any sale when in his discretion it is deemed for the best interests of the estate, but no adjournment shall be to a time more than three (3) months from the date first fixed for the sale. Every adjournment shall be announced publicly at the time and place at which adjournment is made.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

§ 2-7-624. Verified report required; confirmation of sale, by court; hearing may be ordered.

1. After making any sale, mortgage, exchange or lease of real property, the personal representative shall make a verified report thereof to the court. The court shall examine the report and if satisfied that the sale, mortgage, exchange or lease has been at a price and upon terms advantageous to the estate and in all respects made in conformity with law, and that it ought to be confirmed, shall confirm the sale, mortgage, exchange or lease and order the personal representative to deliver a deed, mortgage, lease or other proper instruments to the person entitled thereto.
2. If the real property has been sold at private sale without an appraisal for purpose of sale, or if it has been appraised and has been sold at private sale for less than the appraised value, upon filing of the report the court may enter an order fixing a time and place for [a] hearing and a notice of the hearing shall be served upon all interested persons. Prior to the time fixed for the hearing, any person receiving notice may file written objections to the entry of an order approving the sale. If the court is not satisfied that the sale, mortgage, exchange or lease has been made in conformity with law and that it is in the best interests of the estate, it may reject the sale, mortgage, exchange or lease and enter an order it deems advisable.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1; 1982, ch. 74, § 2.

§ 2-7-625. Joining report with petition.

The report of any private sale, mortgage, exchange or lease of real property, as provided in W.S. 2-7-624 may be joined with the petition provided in W.S. 2-7-614 .

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

§ 2-7-626. Recording.

When real property is conveyed, encumbered or leased, the personal representative shall file a certified copy of the order of court entered under W.S. 2-7-624 together with the instrument of conveyance, encumbrance or lease in the office of the county clerk of the county or counties in which the real estate is located.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

§ 2-7-627. Optional procedure.

In those instances to which W.S. 2-3-501 through 2-3-504 are applicable, the personal representative may proceed thereunder or proceed under W.S. 2-7-612 to 2-7-626 .

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

§ 2-7-701. Debts and charges; classification.

1. In any estate in which the assets are or appear to be insufficient to pay in full all debts and charges of the estate, the personal representative shall classify debts and charges as follows:
   1. Court costs;
   2. Other costs of administration;
   3. Reasonable funeral and burial expenses;
   4. Allowances payable under W.S. 2-7-503 and 2-7-504 ;
   5. All debts and taxes having preference under the laws of the United States;
   6. Reasonable and necessary medical and hospital expenses of the last illness of the decedent, including compensation of persons attending him at his last illness;
   7. All taxes having preferences under the laws of this state;
   8. All debts owing to employees for labor performed during the ninety (90) days next preceding the death of the decedent;
   9. All claims allowed under W.S. 2-7-707 ;
   10. All other claims allowed.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1; 1981, ch. 151, § 2.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Law reviews. —

For article, “The Ungrateful Living: An Estate Planner's Nightmare — The Trial Attorney's Dream,” see XXIV Land & Water L. Rev. 401 (1989).

§ 2-7-702. Debts and charges; order of payment.

Payment of debts and charges of the estate shall be made in the order provided in the preceding section [§ 2-7-701 ] without preference of any claim over another of the same class. If the assets of the estate are insufficient to pay in full all of the claims of a class, then the claims shall be paid on a pro rata basis without preference between claims then due and those of the same class not due.

History. Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.

§ 2-7-703. Filing required; failure to do so constitutes bar; exceptions.

1. Except as otherwise provided in this section, all claims whether due, not due or contingent, shall be filed in duplicate with the clerk within the time limited in the notice to creditors and any claim not so filed is barred forever. Any claimant to whom the personal representative has mailed a notice pursuant to W.S. 2-7-205(a)(ii) shall file his claim within three (3) months after the date of first publication of the notice in the newspaper, or before the expiration of thirty (30) days after the mailing, whichever date is later, and any claim not so filed is barred forever. If only one (1) copy of a claim is filed, the clerk shall make a duplicate and shall charge the claimant a reasonable fee not to exceed two dollars ($2.00) per page.
2. The clerk shall forthwith transmit to the personal representative one (1) copy of each claim when and as filed.
3. This section shall not bar:
   1. Claimants entitled to equitable relief due to peculiar circumstances, if so found by the court in adversary proceedings; or
   2. A claimant to whom no notice was mailed pursuant to W.S. 2-7-205(a)(ii), if the court in adversary proceedings finds that the identity of the claimant was reasonably ascertainable by the personal representative within the time limited in the notice to creditors published pursuant to W.S. 2-7-201 .
4. Any claim not in excess of two hundred dollars ($200.00) may be allowed by the personal representative without the filing of the claim by the creditor, but the personal representative is answerable for the propriety thereof upon hearing on his final report and accounting.

History. Laws 1890-91, ch. 70, art. 14, § 3; R.S. 1899, § 4749; C.S. 1910, § 5618; C.S. 1920, § 6889; Laws 1931, ch. 73, § 134; R.S. 1931, § 88-3103; C.S. 1945, § 6-1603; W.S. 1957, § 2-221; W.S. 1977, § 2-6-203 ; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1; 1989, ch. 114, § 1.

Cross references. —

As to presumption notices properly published, see § 2-2-111 .

As to barring of claims upon failure of creditors to apply for letters within time prescribed, see § 2-4-212 .

As to notice requirements, see § 2-7-201 .

Editor's notes. —

Any pre-1980 cases below were decided prior to the 1980 revision of title 2 which extensively changed this section by rewriting the latter part of subsection (a), providing an exception where there was a lack of notice by reason of being out of the state, and by adding subsections (b), (c) and (d).

Claims not filed within time limit mandatorily barred. —

The legislature has mandatorily barred creditors' claims against the estate of a decedent probated in this state, unless such claims are presented and filed within the definitely limited time prescribed. Estate of Peterson, 75 Wyo. 416, 296 P.2d 504, 1956 Wyo. LEXIS 20 (Wyo. 1956).

Neither an administrator nor the presiding judge is clothed with authority to allow a claim not filed within the limit prescribed. Estate of Peterson, 75 Wyo. 416, 296 P.2d 504, 1956 Wyo. LEXIS 20 (Wyo. 1956).

Creditor's first claim was timely filed under Wyo. Stat. Ann. § 2-7-703(a) and then was properly rejected by the estate, Wyo. Stat. Ann. § 2-7-718 ; the creditor's sole and exclusive remedy was to comply with § 2-7-718 and bring suit in a proper court against the estate within 30 days, which it failed to do and its claim was time barred. Beit Hanina Enters. v. Moffett (In re Estate of Andrew), 2011 WY 165, 267 P.3d 1070, 2011 Wyo. LEXIS 171 (Wyo. 2011).

Term “all claims” is comprehensive and indicates upon its face that it includes claims of every character whether the same be due, not due or contingent. Lindsay v. Collins, 96 F. Supp. 994, 1951 U.S. Dist. LEXIS 2554 (D. Wyo. 1951).

Includes those for wrongful death. —

Failure to file claim against the estate of the decedent for damages in connection with the death of two children killed in the same accident with the decedent barred recovery in an action for recovery of the same damages. Lo Sasso v. Braun, 386 P.2d 630, 1963 Wyo. LEXIS 118 (Wyo. 1963).

And claims by state. —

The failure to except the state from the barring provision of this section makes necessary the plain implication that the lawmaking arm of the state's government did not intend that the state should be relieved of the requirement. State ex rel. Bd. of Charities & Reform v. Bower, 362 P.2d 814, 1961 Wyo. LEXIS 100 (Wyo.), reh'g denied, 363 P.2d 791, 1961 Wyo. LEXIS 104 (Wyo. 1961).

Reimbursement of Medicaid payments. —

The State Department of Health, Division of Health Care Financing is subject to the requirements of subsection (a) and must file a notice of claim for reimbursement of medicaid payments against the estate within the time frames dictated therein. State ex rel. Department of Health, Div. of Health Care Fin. v. Campbell (In re Estate of Campbell), 950 P.2d 557, 1997 Wyo. LEXIS 161 (Wyo. 1997).

Reimbursement claims against wrongful death proceeds not barred.—

The bar set forth in this section against claims not filed in a timely manner against a decedent's estate does not operate to bar a claim by the state for reimbursement of worker's compensation benefits from wrongful death proceeds, because wrongful death proceeds are not part of the decedent's estate. West v. Wyoming State Treasurer, 822 P.2d 1269, 1991 Wyo. LEXIS 193 (Wyo. 1991).

Claim filed by state in guardianship before administrationheld not to comply. —

See State ex rel. Bd. of Charities & Reform v. Bower, 362 P.2d 814, 1961 Wyo. LEXIS 100 (Wyo.), reh'g denied, 363 P.2d 791, 1961 Wyo. LEXIS 104 (Wyo. 1961).

Claim of United States barred in state court. —

A court decreeing payment of a claim of the United States which was filed after end of statutory period following first publication of notice exceeded its jurisdiction, and decree was subject to reversal. Estate of Peterson, 75 Wyo. 416, 296 P.2d 504, 1956 Wyo. LEXIS 20 (Wyo. 1956).

But not by federal court. —

This section did not bar an action by the United States against an estate on a note executed by the deceased in connection with a federal housing administration loan though the claim was filed in the estate after the statutory filing period had expired, since the United States is not bound by a state statute of limitations. United States v. Deimer, 140 F. Supp. 88, 1953 U.S. Dist. LEXIS 1965 (D. Wyo. 1953).

Issuance of letters of administration held not to control time for filing claim if probate proceedings have previously been opened by the filing of a petition for probate. Park County ex rel. Park County Welfare Dep't v. Blackburn, 394 P.2d 793, 1964 Wyo. LEXIS 114 (Wyo. 1964).

Term “barred” is a technical term and is applied to actions or suits. Estate of Peterson, 75 Wyo. 416, 296 P.2d 504, 1956 Wyo. LEXIS 20 (Wyo. 1956).

Section 2-7-717 , requiring holder of claim against an estate to present it to executor or administrator before bringing action thereon, and this section, requiring all claims whether due, not due or contingent, to be filed within time limited in the notice, or be forever barred, refer to the same thing, “barred” applying to action or suit. Dallas Dome Wyoming Oil Fields Co. v. Brooder, 55 Wyo. 109, 97 P.2d 311, 1939 Wyo. LEXIS 45 (Wyo. 1939).

Section does not render invalid debts which are otherwise valid and subsisting, although they do bar the collection or payment of the debt from assets in the hands of a personal representative who, under our law, must apply those assets only in the manner, to the extent and under the conditions prescribed by the legislature of this state. Thus, in a probate proceeding respecting the assets of the deceased situate in some other jurisdiction, the identical claim which has become forever barred in this state for failure to properly file the same in accordance with our laws and procedure may be required to be paid and the property of the deceased so situated elsewhere may be subjected to the payment of the debt, provided the laws and procedures of that other jurisdiction are observed and complied with. Estate of Peterson, 75 Wyo. 416, 296 P.2d 504, 1956 Wyo. LEXIS 20 (Wyo. 1956).

But timely presentation of claim in probate is prerequisite to maintaining action thereon. Lo Sasso v. Braun, 386 P.2d 630, 1963 Wyo. LEXIS 118 (Wyo. 1963); In re Estate of Baker, 483 P.2d 513, 1971 Wyo. LEXIS 211 (Wyo.), reh'g denied, 484 P.2d 1175, 1971 Wyo. LEXIS 217 (Wyo. 1971).

Inasmuch as a claim was not presented during the time allowed by statute, plaintiff could not state a cause of action against defendant upon which relief could be granted, and the district court properly dismissed the action. Lo Sasso v. Braun, 386 P.2d 630, 1963 Wyo. LEXIS 118 (Wyo. 1963).

Presentation of claim and its disallowance or delay in allowing are necessary allegations in an action against an executor or administrator. Lo Sasso v. Braun, 386 P.2d 630, 1963 Wyo. LEXIS 118 (Wyo. 1963).

Failure to allege filing of claim not waived. —

In an action for damages in federal court against estate of a deceased wrongdoer, the administrator did not waive the failure of the plaintiff to allege that the claim upon which an action was brought had been filed in the estate because of the fact that the administrator had appeared through counsel and made a general answer consisting of a general denial and a plea of contributory negligence as well as a cross-claim for alleged negligence of the plaintiff. Lindsay v. Collins, 96 F. Supp. 994, 1951 U.S. Dist. LEXIS 2554 (D. Wyo. 1951).

Mortgagee need not present claim where widow claims homestead.—

Where husband and wife executed mortgage before husband's death and wife thereafter claimed homestead, which was not divisible and worth over statutory homestead amount, mortgage holder was not required to present claim to widow as executrix. Delfelder v. Teton Land & Inv. Co., 46 Wyo. 142, 24 P.2d 702, 1933 Wyo. LEXIS 37 (Wyo.), reh'g denied, 46 Wyo. 142, 26 P.2d 153, 1933 Wyo. LEXIS 38 (Wyo. 1933).

Nor present claim for deficiency if original claim rejected.—

Mortgagee whose claim against deceased mortgagor's estate was rejected was entitled to maintain an action for deficiency remaining unpaid after application of proceeds of sale of mortgaged property pursuant to power of sale to a reduction of the debt, notwithstanding no claim for amount of deficiency was ever presented to representative of mortgagor's estate. Denver Joint Stock Land Bank v. Preston, 52 Wyo. 132, 70 P.2d 584, 1937 Wyo. LEXIS 41 (Wyo. 1937).

But default judgment erroneous without presentation. —

Where administrator appears in an action against him for foreclosure of a mortgage, the petition in which does not aver presentation of the claim in an action, nor waive recourse against the estate, judgment by default against him for a deficiency and for attorney's fees is erroneous, under § 2-7-717 , requiring presentation of claim before an action is brought, except where petition expressly waives recourse against property of estate. O'Keefe v. Foster, 5 Wyo. 343, 40 P. 525, 1895 Wyo. LEXIS 29 (Wyo. 1895).

Creditor can recover amount greater than specified in its claim against estate where the original claim reserves the right to amend the claim from time to time, said reservation is reasonable due to confused records of the parties and deaths of material witnesses, and the claimant moves at trial to amend the claim and the defendant is not prejudiced thereby. Yost v. Harpel Oil Co., 674 P.2d 712, 1983 Wyo. LEXIS 392 (Wyo. 1983).

Reopening of estate. —

It is within the district court's discretion to require the party seeking to reopen the estate to make a prima facie showing to support its allegations before requiring the personal representative to submit to discovery; therefore, the denial of a motion to reopen an estate was reversed and remanded where a strong showing standard was incorrectly used. Strngari v. Taylor (In re Estate of Novakovich), 2004 WY 158, 101 P.3d 931, 2004 Wyo. LEXIS 203 (Wyo. 2004).

Peculiar circumstances not found. —

“Peculiar circumstances” under subsection (c)(i) would not apply to set of facts where (1) plaintiff was injured, allegedly by his father; (2) plaintiff's father died; (3) an estate was opened to provide plaintiff with a defendant to sue; (4) plaintiff was sent a Notice of Probate requiring claims against the estate to be filed by a certain date; and (5) no claim was filed. Scott v. Scott, 918 P.2d 198, 1996 Wyo. LEXIS 89 (Wyo. 1996).

Notice required. —

Creditor of an estate is entitled to personal notice of probate if a personal representative knows of the creditor's identity or if, through due diligence based on the information available to the personal representative, the creditor's identity is reasonably ascertainable. A personal representative's argument that a personal injury claim was too speculative as to require notice during probate proceedings was rejected. Strngari v. Taylor (In re Estate of Novakovich), 2004 WY 158, 101 P.3d 931, 2004 Wyo. LEXIS 203 (Wyo. 2004).

Notice to creditors by publication. —

Nothing in any of the probate statutes contemplates an individual notification to a creditor except by publication of notice to creditors. Such constructive notice is given to all creditors inside and outside of Wyoming. In re Estate of Baker, 484 P.2d 1175, 1971 Wyo. LEXIS 217 (Wyo. 1971).

Adversary proceeding. —

Hearing to determine whether a petitioner can make a prima facie showing would qualify as an adversary proceeding under this section in determining whether or not to reopen a closed estate. Such a hearing takes into consideration the due process concerns because it gives a creditor an opportunity to show that the creditor was reasonably ascertainable. Strngari v. Taylor (In re Estate of Novakovich), 2004 WY 158, 101 P.3d 931, 2004 Wyo. LEXIS 203 (Wyo. 2004).

Creditor estopped from claiming lack of notice. —

Where notice was duly published as required by this section, and plaintiff litigated his claim for a period of two years against administrator, he cannot, on being defeated, and after time for filing claims has expired, claim lack of knowledge of publication of notice to enable him to file claim under this section. Thomas v. Bivin, 34 Wyo. 317, 243 P. 130, 1926 Wyo. LEXIS 41 (Wyo. 1926).

Prior permitted use of affidavit by claimants showing lackof notice because out of state. —

See Associated Aviation Underwriters v. Smith, 597 P.2d 964, 1979 Wyo. LEXIS 432 (Wyo. 1979).

Applied in

Roberts v. Roberts, 64 Wyo. 455, 64 Wyo. 433, 197 P.2d 697, 1948 Wyo. LEXIS 13 (1948).

Quoted in

Tschirgi v. Meyer, 536 P.2d 558, 1975 Wyo. LEXIS 146 (Wyo. 1975).

Stated in

Kuntz v. Kinne, 395 P.2d 286, 1964 Wyo. LEXIS 119 (Wyo. 1964).

Cited in

Delfelder v. Farmers' State Bank, 38 Wyo. 481, 269 P. 418, 1928 Wyo. LEXIS 72 (1928); In re Demorest's Estate, 41 Wyo. 189, 283 P. 1097, 1930 Wyo. LEXIS 1 (1930); In re Estate of Gibbs, 73 Wyo. 425, 280 P.2d 556, 1955 Wyo. LEXIS 9 (1955); Harris v. Taylor, 969 P.2d 142, 1998 Wyo. LEXIS 175 (Wyo. 1998); Rodriguez v. Casey, 2002 WY 111, 50 P.3d 323, 2002 Wyo. LEXIS 117 (Wyo. 2002); Bell v. Schell, 2004 WY 153, 101 P.3d 465, 2004 Wyo. LEXIS 197 (2004).

Law reviews. —

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part II,” 8 Land & Water L. Rev. 187 (1973).

Am. Jur. 2d, ALR and C.J.S. references. —

Exclusiveness of grounds enumerated in statute providing, under specified circumstances, extension of time for filing claims against decedent's estate, 57 ALR2d 1304.

Appealability of order, of court possessing probate jurisdiction, allowing or denying tardy presentation of claim to personal representative, 66 ALR2d 659.

Validity of claims against estate filed prior to publication of notice to creditors, 70 ALR3d 784.

§ 2-7-704. Affidavit and other required supporting documentation.

1. Every claim which is due, when filed with the clerk shall be supported by the affidavit of the claimant or someone in his behalf, that the account is justly due, that no payments have been made thereon which are not credited and there are no offsets to the same to the knowledge of the affiant. If the claim is not due when filed or is contingent the particulars of the claim shall be stated. The personal representative may also require satisfactory vouchers or proofs to be produced in support of the claim.
2. If the claim is founded on a bond, bill, note or any other instrument, a copy of the instrument shall accompany the claim. The original instrument shall be exhibited to the personal representative, if demanded, unless it is lost or destroyed, in which case the claimant shall accompany his claim by his affidavit containing a copy or particular description of the instrument and stating its loss or destruction. If the claim or any part thereof is secured by a mortgage or other lien which has been recorded in the office of the county clerk of the county in which the land affected by it lies, it is sufficient to describe the mortgage or lien and refer to the date, volume and page of its record.

History. Laws 1890-91, ch. 70, art. 14, § 4; R.S. 1899, § 4750; C.S. 1910, § 5619; C.S. 1920, § 6890; R.S. 1931, § 88-3104; C.S. 1945, § 6-1604; W.S. 1957, § 2-222; W.S. 1977, § 2-6-204 ; Laws 1979, ch. 142, § 2; 1980, ch. 54, § 1.

Editor's notes. —

Cases appearing below and decided prior to 1980 may relate to language in this section as it read prior to the 1980 revision of title 2 which deleted part of subsection (a) relating to when an affidavit was made by one other than the claimant and added subsection (b).

There is no requirement that creditor's claim be signed by claimant. Edmonds v. Valley Nat'l Bank, 518 P.2d 7, 1974 Wyo. LEXIS 174 (Wyo. 1974).

But only that claim be supported by affidavit of the claimant or someone in his behalf is required. Edmonds v. Valley Nat'l Bank, 518 P.2d 7, 1974 Wyo. LEXIS 174 (Wyo. 1974).

Unverified claim sent in letter to estate's attorney not properlysubmitted. —

A claim against an estate, sent in a letter to the attorney for the estate, but not verified, was not properly submitted and its payment could not be enforced. Litzenberger v. Merge, 698 P.2d 1152, 1985 Wyo. LEXIS 476 (Wyo. 1985).

Purpose of affidavit. —

The requirements for an affidavit supporting a claim against an estate are not intended to make it easier to avoid payment but are intended to make a claimant set forth his claim with such particularity that the person passing upon it will be fully advised as to just what is claimed. Park County ex rel. Park County Welfare Dep't v. Blackburn, 394 P.2d 793, 1964 Wyo. LEXIS 114 (Wyo. 1964).

Verification of claim by corporation. —

A corporation cannot itself verify a claim but must do so by an officer or person authorized to make such affidavit. Edmonds v. Valley Nat'l Bank, 518 P.2d 7, 1974 Wyo. LEXIS 174 (Wyo. 1974).

Substantial compliance with section is all that is required where there is an opportunity for the person passing upon the claim to require further proof. Park County ex rel. Park County Welfare Dep't v. Blackburn, 394 P.2d 793, 1964 Wyo. LEXIS 114 (Wyo. 1964).

A copy of a note is sufficient statement of the particularity of a claim. Edmonds v. Valley Nat'l Bank, 518 P.2d 7, 1974 Wyo. LEXIS 174 (Wyo. 1974).

Section ambiguous when payment contingent upon judge's discretion.—

This section is somewhat ambiguous when applied to a claim which is contingent upon the district judge in his discretion ordering it paid or not ordering it paid. Park County ex rel. Park County Welfare Dep't v. Blackburn, 394 P.2d 793, 1964 Wyo. LEXIS 114 (Wyo. 1964).

Section clearly places burden upon executor by virtue of the provision that the representative may also require vouchers and proof. Edmonds v. Valley Nat'l Bank, 518 P.2d 7, 1974 Wyo. LEXIS 174 (Wyo. 1974).

Claim filed by state in guardianship before administrationdoes not comply. —

See State ex rel. Bd. of Charities & Reform v. Bower, 362 P.2d 814, 1961 Wyo. LEXIS 100 (Wyo.), reh'g denied, 363 P.2d 791, 1961 Wyo. LEXIS 104 (Wyo. 1961).

Issuance of letters of administration held not to control time for filing claim if probate proceedings have previously been opened by the filing of a petition for probate. Park County ex rel. Park County Welfare Dep't v. Blackburn, 394 P.2d 793, 1964 Wyo. LEXIS 114 (Wyo. 1964).

Quoted in

Tschirgi v. Meyer, 536 P.2d 558, 1975 Wyo. LEXIS 146 (Wyo. 1975).

Cited in

In re Estate of Baker, 483 P.2d 513, 1971 Wyo. LEXIS 211 (Wyo. 1971).

Am. Jur. 2d, ALR and C.J.S. references. —

Amendment of claim against decedent's estate, introducing new or different claim or effecting substantial change in claim, 56 ALR2d 627.