Estate Administration Flashcards
Jurisdiction and Venue
Estate administration is handled by circuit courts and their clerks
Proper venue is (in descending priority)
- Where the decedent has a house or known place of residence
- Where the decedent owned real property to be devised; or
- Where the decedent died or has personal property
When the will has no self proving affidavit
The testimony of at least one attesting witness is required
How many witnesses must testify for a holographic will ?
requires testimony of at least two disinterested witnesses that the handwriting is that of the testator
Ex parte probate
No prior notice to interested parties; administrator must give written notice within 30 days so interested parties can appeal
Inter partes probate
A full judicial hearing with notice and a right to a jury, the court may require attesting witnesses to testify even if the will is self proved
Holographic will
two disinterested persons must testify that the will is completely in the testator’s handwriting
what is a Attestation Clause
Clause at the end of a will, signed by a witness, stating that the will was executed in compliance with formalities of execution and that the testator had sufficient capacity execute the will
Effect of an attestation clause
an attestation clause is prima facie evidence that the will was formally executed; the proponent still must present testimony as to the authenticity of signatures if guinness is challenged
Self proving affidavit- allowed in VA
is An affidavit attached to a will, signed by the testator and witnesses certifying that the statutory requirements have been met, is treated part of the will
Effect of self proving affidavit
Permits the will to be probated without any witness testimony about the execution of the will or the authenticity of the signatures of on the will, the affidavit must be notarized
Personal representative
Manages the decedent’s estate
A personal executor named in the will
is an executor
Court appointed personal representative
is an administrator
Qualifications to be an executor/administrator
- Legally competent (age 18+)
- Must give an oath that he will faithfully perform the duties of his office to the best of his judgment and to that (to the best of his knowledge)
(a) the writing is the decedent’s last true will; or
(b) the decedent left no will (If in intestacy) - Must post bond equal to value of decedent’s personal property
- A security on the bond is required unless
(a) all distributes/beneficiaries serve as PRs; or
(b) the will waives security of an executor
named in the will - any interested party may move that the clerk require surety from the fiduciary or petition the the court require security in an amount the court finds appropriate
Appointing administrator cum testamento annexo (with will attached) (c.t.a)
Appointed when the decedent dies with a will but the will fails to name an executor or the named executor is unable or unwilling to serve.
The court appoints a residual or a substantial beneficiary under the will as administrator c.t.a; if the administrator c.t.a does not apply for administration within 30 days, the court appoints an administrator as if the decedent died intestate
Appointing an administrator in intestacy
Selected from among the decedent’s heirs, a sole heir is entitled to serve alone or designate an administrator, if the heirs cannot agree, the court may appoint an heir or other suitable person
Procedure for appointing an administrator
- First 30 days following death, the court may appoint a sole distributee or any distributee who offers written waivers from other distributees
- After first 30 days- the court may appoint the first the first distributee
- After 45 days- if no administrator, court may appoint any non-profit charity org that (1) operated as a conservator or guardian for the decedent at the time of death, and (2) certifies that it has made a diligent search for any sole distributee
- After 60 days- administration may be granted to one or more creditors, or any other person, who certified the same diligent search efforts
Removal and replacement
Personal representatives are fiduciaries who owe duties of loyalty and prudence to beneficiares. The court may revoke and annul the powers of any fiduciary whenever it appears proper.
Sufficient grounds include fraud, gross negligence, or other breach of duty.
What happens when a PR is removed or withdraws
Court appoints an administrator as a replacement
Successor to an administrator is an administrator d.b.n
successor to an executor c.t.a is a “administrator c.t.a d.b.n)
How are non-probate assets administered ?
according to the governing document
What happens if personal probate estate is worth 50,000 or less ?
The rightful beneficiares may collect without administration 60 days after the death of the decedent
Third parties holding small assets payable to the estate must make payments directly upon the beneficiaires affidavit stating
- Personal probate estate does not exceed 50k
- At least 60 days have passed since the decedent’s death
- No pr has been appointed
- Decedent’s will (if any) has been duly probated
- Beneficiaries are entitled to the small assets and the basis for such entitlement
- Names and adresses of the beneficiares
- Name of person to whom small assets should be delivered on behalf of beneficiaries; and
8 Person to whom the small assets should be delivered has a fiduciary duty to safeguard the property and deliver the small assets as required by law
Insolvent estates (if estate cannot pay all claims)
Estate pays in following order
1. Costs and expenses of administration
2. Family allowance, homestead, and exempt property
3. Funeral expenses up to 4k
4. Debts and taxes with preference under federal law
5. Medical expenses of the descendants last illness up to $2,150 for each hospital and nursing home and $425 for each person (private nurse)
6. Debts and taxes to the commonwealth
7. Debts payable as a fiduciary
8. Debts for child support
9. Debts and taxes due to state and local governments
10. All other claims
