Chapter 4: The Probate Process

Question 0

Ademption

Answer 0

Extinction of a legacy because an asset, specifically bequeathed to a legatee, has been disposed of prior to death.

Question 1

Abatement

Answer 1

The reduction in assets transferring to a legatee because the estate has insufficient assets to satisfy all of the legatees.

Question 2

Administrator

Answer 2

A person, usually a relative of the deceased, appointed by the probate court to oversee the probate process when an executor has not been named.

Question 3

Ancillary Probate

Answer 3

Concurrent second probate process conducted in a non-domiciliary state in which the decedent wins property, which often requires the services of an attorney from that state, and separate court fees.

Question 4

Domicile

Answer 4

Where a person lives, the location of their home.

Question 5

Estate Administration or Succession

Answer 5

The passing of property at death to surviving heirs/legatees.

Question 6

Executor

Answer 6

Estate representative designated in the will by the decedent. And executor may serve without bond if the bond is waived by the decedent.

Question 7

Heir

Answer 7

One who inherits under state law.

Question 8

In Trust For (ITF) Accounts

Answer 8

A bank account utilizing a beneficiary designation.

Question 9

Legatee

Answer 9

One who inherits under the will.

Question 10

Letters of Administration

Answer 10

A legal document that affirms the power of the administrator to act as the agent of the probate court.

Question 11

Letters Testamentary

Answer 11

A legal document that affirms the power of the executor to act as the agent of the probate court.

Question 12

Pay-on-Death Bank Account (POD)

Answer 12

A bank account utilizing a beneficiary designation.

Question 13

Probate process

Answer 13

The legal proceeding that serves to prove the validity of existing wills, supervise the orderly distribution of decedents assets to the heirs, and protect creditors by ensuring that valid debts of the estate are paid.

Question 14

Situs

Answer 14

The place, generally referring to the state, where property is located.

Question 15

Surety bond

Answer 15

A bond posted by the administrator or the executor of the estate to protect creditors, heirs, and legatee from kisses created by the administrator or executor.

Question 16

Totten Trust

Answer 16

Not a trust, but rather a bank account with a beneficiary clause.

Question 17

Transfer-on-Death Account (TOD)

Answer 17

An investment account utilizing a beneficiary designation.

Question 18

What are some advantages of probate?

Answer 18

Protect the decedent
Protect the legatees and heirs
Protect the creditors

• Implements disposition objectives of testator
• Provides for an orderly administration of assets
• Provides clean title to heirs or legatees
• Increases the chance that parties of interest have notice or proceedings and, therefore, a right to be heard
• Protects creditors by insuring that debts of the decedent are paid

Question 19

What are some disadvantages of probate?

Answer 19

The time cost (delays)
Monetary cost (costs)
Privacy (publicity) 

• Can be complex and excruciatingly slow – delays
• Can result in substantial monetary costs – costs
• The process is open to public scrutiny – publicity

Question 20

What is the state contract law?

Answer 20

Transfer that avoid probate by contract allow the client to select a designated beneficiary to whom the property will be transferred; receives the title directly at death of owner.

– life insurance
– annuities
– IRAs, SEPs, SIMPLEs, and Qualified Retirement Plans
– Totten Trusts, POD accounts, and TOD accounts

Question 21

What is the state titling law?

Answer 21

Property held as JTWROS or as Tenancy by Entirety pass outside the probate process because of the automatic survivorship feature (automatic retitling).

Question 22

What is the state trust law?

Answer 22

All trust property passes outside of the probate process per state trust law. Property in trust has already been retitled because when the grantor of the trust transferred the property into the trust, it had to be retitled as trust property.