14-3412

14-3412. Formal testacy proceedings; effect of
order; vacation

A. Subject to appeal and subject to vacation as provided in this section and in
section 14-3413, a formal testacy order under sections 14-3409 through 14-3411, including
an order that the decedent left no valid will and determining heirs, is final as to all
persons with respect to all issues concerning the decedent's estate that the court
considered or might have considered incident to its rendition relevant to the question of
whether the decedent left a valid will, and to the determination of heirs, except that:

1. Not later than sixty days after entry of a formal testacy order probating a will
or a formal adjudication of intestacy, any interested person who did not oppose the
probate of the will or the allegations of intestacy at the original hearing may petition
the court to vacate its order and reopen the matter; the court shall thereupon fix a time
and place of hearing, with notice to the heirs, the devisees named in the will, the
personal representative, and other persons as directed by the court. The court shall
proceed as in any contested testacy case; the court may vacate the original order and
make a new order determining the decedent's state of testacy, or deny the petition to
vacate and confirm the original order.

2. The court shall entertain a petition for modification or vacation of its order
and probate of another will of the decedent if it is shown that the proponents of the
later-offered will were unaware of its existence at the time of the earlier proceeding or
were unaware of the earlier proceeding and were given no notice thereof, except by
publication.

3. If intestacy of all or part of the estate has been ordered, the determination of
heirs of the decedent may be reconsidered if it is shown that one or more persons were
omitted from the determination and it is also shown that the persons were unaware of
their relationship to the decedent, were unaware of his death or were given no notice of
any proceeding concerning his estate, except by publication.

4. A petition for vacation under either paragraph 2 or 3 of this subsection must be
filed prior to the earlier of the following time limits:

(a) If a personal representative has been appointed for the estate, the time of
entry of any order approving final distribution of the estate, or, if the estate is
closed by statement, six months after the filing of the closing statement.

(b) Whether or not a personal representative has been appointed for the estate of
the decedent, the time prescribed by section 14-3108 when it is no longer possible to
initiate an original proceeding to probate a will of the decedent.

5. The order originally rendered in the testacy proceeding may be modified or
vacated, if appropriate under the circumstances, by the order of probate of the
later-offered will or the order redetermining heirs.

6. The finding of the fact of death is conclusive as to the alleged decedent only
if notice of the hearing on the petition in the formal testacy proceeding was sent by
registered or certified mail addressed to the alleged decedent at his last known address
and the court finds that a search under section 14-3403, subsection B was made.

B. If the alleged decedent is not dead, even if notice was sent and search was
made, he may recover estate assets in the hands of the personal representative. In
addition to any remedies available to the alleged decedent by reason of any fraud or
intentional wrongdoing, the alleged decedent may recover any estate or its proceeds from
distributees that is in their hands, or the value of distributions received by them, to
the extent that any recovery from distributees is equitable in view of the circumstances.