Ch 8: Probate & Administration Flashcards
(28 cards)
A decedent’s assets as of the date of death are divided between what? (T)
A decedent’s assets as of the date of death are divided between probate and nonprobate property.
What is probate property? (T)
Probate property is property that passes under intestacy or under the decedent’s will.
What is nonprobate property? (T)
Nonprobate property passes under an instrument other than a will (e.g., joint tenancy property, life insurance, and pension plan proceeds).
On the exam, how do you analyze how to distribute property? (T)
When analyzing how to distribute property, first pass any nonprobate property to those identified in the nonprobate instrument. Any remaining property is probate property, and the takers of probate property depend on whether a valid will exists.
If the decedent did not have a valid will (or if there is property not properly disposed of in the will), then the property is distributed intestate, under the jurisdiction’s statute on distribution.
For the purposes of administration of a decedent’s estate, what jurisdiction controls? (T)
The county where the decedent was domiciled at the time of his death has jurisdiction over the decedent’s personal property and over any real property within that jurisdiction.
For the purposes of administration of a decedent’s estate, what notice is required? (T)
Most jurisdictions require that notice be given to interested parties before the administrator is appointed.
For the purposes of administration of a decedent’s estate, what is ancillary jurisdiction? (T)
Ancillary jurisdiction applies to real property located in another jurisdiction for the purpose of protecting local creditors and ensuring adherence to the jurisdiction’s recording system.
For the purposes of administration of a decedent’s estate, when is administration allowed to begin? (T)
After the court issues its “letters testamentary” or “letters of administration,” the personal representative is authorized to perform his duties on behalf of the estate.
Who is protected after granting letters of administration? (T)
Bona fide purchasers from personal representatives or heirs are protected after the granting of letters of administration, even if the will presented when the letters were granted is subsequently invalidated.
Under the UPC, when must probate proceedings be brought? (T)
The UPC provides that probate proceedings must be brought within three years of death, after which there is a presumption of intestacy.
What two kinds of probate are there? (T)
The party requesting probate can choose to have it occur through either ex parte probate or notice probate.
What is ex parte probate? (T)
Ex parte probate is informal and requires no notice for the representative to petition for appointment.
What happens during ex parte probate? (T)
The original will must accompany the petition, and the executor must swear that, to the best of his knowledge, the will was validly executed.
Within 30 days of appointment, the personal representative must notify all interested persons, including heirs apparently disinherited by the will.
What is notice probate? (T)
Notice probate is a formal judicial determination made after notice is given to interested parties. Any interested party can demand formal probate.
What may formal probate proceedings be used for? (T)
A formal proceeding may be used to probate a will, to block an informal proceeding, or to secure a declaratory judgment of intestacy. Formal proceedings are final if not appealed.
What are nonclaim statutes? (T)
Nonclaim statutes bar creditors from filing claims after a specified time period has elapsed. If a claim is not made within that specified period after probate is opened, then the claims are barred.
Who must provide notice to the estate’s creditors? (T)
The personal representative must provide notice to the estate’s creditors, advising them of when and where to file claims.
What happens if someone fails to properly notify creditors? (T)
Failure to properly notify creditors extends the time period they have to file a claim against the estate.
In what order are expenses and debts to be paid? (T)
i) Administrative expenses;
ii) Last medical expenses and funeral expenses;
iii) Family allowance;
iv) Tax claims;
v) Secured claims;
vi) Judgments against the decedent; and
vii) All other claims.
How is a personal representative appointed? (T)
A personal representative is either named in the will (executor) or appointed by the court (administrator) to oversee the winding up of a decedent’s affairs.
Who may serve as a personal representative? (T)
Any person with the capacity to contract may serve as a personal representative.
Where does the authority of the personal representative to ac on the estate’s behalf come from? (T)
The authority of the personal representative to act on the estate’s behalf comes from the court.
What is the order of priority for personal representatives? (T)
Persons qualified to serve as the personal representative should have priority for appointment in the following order:
i) The person named in a probated will;
ii) The surviving spouse of the decedent who is a devisee of the decedent;
iii) Other devisees of the decedent;
iv) The surviving spouse of the decedent;
v) Other heirs of the decedent;
vi) Forty-five days after the death of the decedent, any creditor.
What are the principal duties of the personal representative? (T)
The principal duties of the personal representative are to:
i) Provide notice to legatees, heirs, and claimants;
ii) Inventory and collect the assets of the decedent;
iii) Manage the assets during administration;
iv) Receive and pay claims of creditors and tax collectors; and
v) Distribute the remaining assets to those entitled to them.
