Chapter 10: Probate and Administration Flashcards
Describe probate and administration
Probate is also called administration when decedent dies intestate. It is the judicial process that establishes the validity of an instrument, determines devisees/heirs, and issues letters authorizing action by personal representative or administrator. Transfers title to property, protects creditors by requiring payment of debts, and directs distribution of decedent’s estate after creditors are paid.
Propate deals only w/ probat property, which passes via will or intestacy.
Primary Jurisdiction for probate
Primary jx and venue are in the county where the decedent was domiciled at the time of death. Other counties where decedent owned real property have ancillary jx, but that jx is dependent on proceedings where there is primary jx.
Personal representative
After filing probate/intestacy a personal rep or executor is appointed.
Will usually neams executor. If not or unavailable the priority is: 1. surviving spouse, 2. any devisee, 3. Any heir, 4. Any next of kin, 5. any creditor, 6. anyone of good character in the county, 7. anyone of good character.
Must: (1) provide notice to devisees, heirs, and claimants (2) inventory and collect assets of decedent; (3) manage the assets during administration, (4) recieve an pay claims of creditors and tax collectors; (5) distribute the remaining assets tho those entitled to them.
The personal representative has a fiduciary duty to the estate and may be personally liable for breach.
After paying creditors and distributing assets, the estate is closed.
Letters testamentary or administration
The court then issues letters of testamentary or administration to personal rep. They authorize the personal rep to make tx in the property.
When can a will be probated?
A will can be probated at any time.
Probate in solemn form
Requires clerk to give notice to all interested parties and schedule a hearing.
Caveats must be filed before the hearing.
If no interested party w/ notice contests the will, the probate is binging.
Probate in common form
Most common
Caveat can be filed w/in 3 years after filing common form probate
Creditors Claims
In NC claims that arose before decedents death must be filed w/ the personal representative either w/in the time specified in the notice (at least 3 months) or 90 days after the delivery or mailing of notice to known creditors.
Notice: personal rep must mail notice to all creditors who can be reasonably ascertained adn publish a notice to creditors, which gives at least 3 months from the first publication of notice for a claim.
Power of Appointment
A flexible power given by T to an individial to dispose of property under the will.
Power may be testamentary (by donor’s will) or presently exercisable (during life)
Donee can appoint herslef, here estate, her creditors, or the creditors of her estate as a new owner.
Special power of appointment
Exclusive: power to appoint anyone except a group
Nonexclusive: allows the donee to appoint amond a class of people
Power of Attorney
An authorization for someone else to act on behalf of principal who executed the power.
General: authorized broad powers, such as those related to financial transactions.
Special: execute a deed to a particular piece of property
Health care power of attorney: allows an agent to make health care decisions for the principal when the principal becomes incapacitated. Must be in writing, signed by the individual who is to receive care, in the presence of 2 qualified witnesses, notarized.
POA’s can be made durable to withstand principals incapacity.
Fiduciary duties: exercise powers for the benefit of the principal, hold separate the assets of the principal from the assets of the agent, exercise reasonable care, all tx for benefit of principal and file an accounting of administration when directed by the court.
