Estate Administration

Question 1

Steps in Administering the Decedent’s Estate

Answer 1

1. Opening of the Estate
   
   1. Duly executed will is admitted or heirs are determined
   2. personal representative appointed
2. Collection fo Decedent’s Probate Assets
   
   1. Personal rep takes possession and control of probate assets
   2. personal rep has right to sell assets to satisfy claims against estate
3. Protection of Surviving Family Members
   
   1. if appropriate, a family allowance is paid, homestead rights are fixed, and exempt personalproperty set-aside is made
4. Payment of Creditors
   
   1. Notice to creditors is given by publication; personal notice to known creditors.
   2. creditors claims are paid or disallowed
5. Payment of Taxes
   
   1. estate’s and/or decedent’s personal tax returns are filed by personal representative
   2. taxes are paid from estate assets
6. Distribution of Assets
   
   1. after funeral and admin expenses, creditor’s claims and taxes are paid, assets remaining are distributed to beneficiares or heris
   2. personal rep is discharged

Question 2

Personal Representative Duty and Right of Possession

Answer 2

1. duty to take possession and control of probate assets
   
   1. Majority - title passes immediately to devisees/heirs but rep still has right
   2. Minority - rep has no right of possession but can still sell assets
2. can satisfy creditor’s claims and wind up decedent’s affairs with assets
3. rep can’t take nonprobate assets

Question 3

Taxes

Answer 3

1. Personal rep responsible for paying estate’s taxes, and personally liable to see all taxes paid.
2. rep has file at least one income tax return even if estate too small to require filing under state or federal law.

Question 4

Court Supervised vs. Unsupervised Administration - Majority and Minority Rules

Answer 4

1. Majority Rule - all steps in probate admin process are subject to court’s supervision and control.
   
   1. applies to any act by rep, no matter how insignficant.
   2. slow and expensive
2. Minority/Texas - allows testator to provide for unsupervised estate administration in will.
   
   1. quicker
   2. less protection for rep
3. UPC - administrations are unsupervised unless supervision is requested by the personal rep or an interested party.

Question 5

Jurisdiction and Venue

Answer 5

1. Jurisdiction - staet of decedent’s domicile at time of death.
   
   1. Real Property (Situs rule)- if decedent’ owned real property in anothe rstate, ancillary probate required in other state to clear title.
2. Venue - county of decedent’s domicile at time of death.

Question 6

Who May Offer Will for Probate?

Answer 6

Any interested party, includign a creditor of the estate.

Question 7

Time Within Which Will Must Be Produced for Probate

Answer 7

1. Varies by State
   
   1. Minority of States have no time limit.
   2. Texas - no time limit, but proponent must shw she was not in default in failing to file for probate within four years of T’s death.
2. UPC - 3 years from testator’s death. Otherwise intestacy presumption becomes conclusive.

Question 8

Procedure for Admitting Will - UPC and Common Law

Answer 8

Two Forms at Common Law and Under UPC -

1. Probate in Common Form -
   
   1. ex parte proceeding.
   2. no notice to interested parties required.
   3. admission final unless contested within certain period.
2. Probate in Solemn Form -
   
   1. notice required to interested parties for probate hearing

Question 9

Procedure for Admitting Will -

1. Majority Rule
2. Common Law and UPC

Answer 9

Majority - in most states, a formal adjudicative proceeding occurs after notice to interested parties.

UPC and Common Law (Two Forms) -

1. Probate in Common Form -
   
   1. ex parte proceeding.
   2. no notice to interested parties required.
   3. admission final unless contested within certain period.
2. Probate in Solemn Form -
   
   1. notice required to interested parties for probate hearing

Question 10

Burden of Proof in Will Admittance - Majority/Texas

Answer 10

Majority/Texas - Generally, proponent has burden of proof to show will was duly executed. But once the will is admitted to probate, any challenge to the will’s validity shifts the burden of proof to the contestant.

Question 11

Proof of Due Execution -

1. Can proof of due execution be waived?
2. What happens if an attesting witness is absent or unavailable?
3. Effect of an Attestation Clause
4. Effect of Self-Proving Affidavit

Answer 11

1. No, even if all interested parties agree, the probate court can’t find due execution where no evidence of it exists.
2. if one attesting witness is dead or otherwise unavailable, court can rely solely on testimony of other attesting witness. if both attesting witnesses are dead or unavailable, court needs handwriting of testator and at least one of the attesting witnesses.
3. attestation clause is prima facie evidence of validity, but must still be corroborated with witness testimony or proof of the testator’s and witness’s signatures.
4. Self-proved affidavit allows admittance of will without attestation or any other corroborating evidence.
   5.

Question 12

Whats the difference between an executor and an administrator?

Answer 12

1. Executor - a person named in a will to serve as personal representative.
   
   1. executors receive letters testamentary from the court which give authority.
2. Administrator - a personal representative appointed by the court to administer an intestate estate.
   
   1. administrators receive letters of administration from the court.

Question 13

Types of Guardians -

1. Guardian of the Person
2. Guardian of the Estate
3. Guardian Ad Litem

Answer 13

1. Guardian of the Person - Responsible for the custody and care of a minor child. May be nominated by the parent’s will or, if no gaurdian is designated, selected from a statutory list by the court.
2. Guardian of the Estate - Responsible for managing a minor’s estate. Must give bond, make annual accountings, can invest only in savings accounts and govnernment bonds, and may spend income only for the child’s benefit
3. Guardian Ad Litem - Responsible for representing the interests of a minor or incapacited heir or beneficiary. Appointed by the court.

Question 14

Qualifications of Personal Representative -

1. Capacity
2. Conflict of Interest
3. Nonresidents

Answer 14

1. Capacity - a person is qualified to serve as personal representative if they have the capacity to contract.
2. Conflict of Interest - conflicts of interest do not, by themselves, make a person ineligible.
3. Nonresidents - are eligible to serve in most states.

Question 15

Personal Representative -

1. Executor Named in Will
2. Providing Bond
3. Compensation
4. Termination of Appointment

Answer 15

1. Executor Named in Will - the person named in the will will be executor unless disqualified. No other interested parties have a say.
2. Providing Bond - personal rep must post a fiduciary bond unless will waives it.
   
   1. UPC says no bond unless will expressly provides for one.
3. Compensation - personal rep entitled to compensation for performance.
   
   1. usually a set statutory amount unless otherwise stated in the will.
   2. UPC - personal rep entitled to reasonable comipensation (even if provision in will)
      
      1. reasonable is usually based on going rates in community.
   3. Waiver - Personal rep can waive compensation.
4. Termination of Appointment - automatic termination for death, disability, resignation, judicial terminatio nfor misconduct, closing of the estate.

Question 16

Duties of Personal Rep

1. Marshalling Decedent’s Assets
2. Duty not to comingle with personal assets
3. Inventory
4. Accounting
5. Care and Preservation of Assets
6. Carry on D’s Business
7. Fiduciary Duties

Answer 16

1. Marshalling Decedent’s Assets
   
   1. only probate assets
2. Duty not to comingle with personal assets
3. Inventory - need to file an inventory of the decedent’s probate assets with the court.
4. Accounting - render periodic accountings to the court.
5. Care and Preservation of Assets - prudent person standard for care.
   
   1. Investments - no investments allowed unless for purpose of preventing a loss.
6. Carry on D’s Business -
   
   1. Majority Rule - Rep can’t carry on business owned by the Decedent.
      
      1. If Rep does, he is personally liable for any losses/profits.
   2. Minority Rule - can do so under special circumstances.
7. Fiduciary Duties -
   
   1. Duty of Care - General Standard of Care and Prudence in Administering Estate Assets
      
      1. If special skills, hightened standard
   2. Duty of Loyalty - no self-dealing

Question 17

Liabilities of Personal Representative

Answer 17

1. Breach of Fiduciary Duty - as a true fiduciary, a personal rep is liable for any loss resulting from actions in bad faith, mismanagement, or breach of fiduciary duty.
2. Torts -
   
   1. liable for any torts comittted in course of administration of estate.
   2. entitled to reimbursement from estate if (1) not personally at fault, and (2) no breach of duty of care (e.g., tort committed by an employee of rep).
3. Contracts - personal rep is personally liabel on contracts entered into on behalf of estate unless contract relieves him of liability.
   
   1. entitled to be reimbursed from estate if (1) contract was within powers (2) was entered into in course of proper estate administration.
   2. must sign on behalf of estate, not merely as executor (e.g., “Mary Jones’s Estate, by Sam Jones, Executor) otherwise personally liable.