Final Exam Flashcards
What pleading begins formal probate administration?
Petition for probate of will or petition to prove a will
What are “Letters of Administration?”
A document of authority & appointment given to a PR by the ct to carry out the administration of the decedent’s estate.
Who is an “Interested Person” as it relates to probate administration proceedings?
All person’s who have a property right or claim against the decedent’s estate, creditors, heirs, beneficiaries, spouses, and children
What persons are entitled to preference in appointment as Personal Representative of an intestate Decedent’s Estate?
The surviving spouse, the person selected by a majority interest of the heirs, the heir nearest in degree.
What is required to be listed in the Petition for Administration? Name 5 items.
A statement of the interest of each petitioner, The name and last known address of the decedent and last 4 of social, Name and address of surviving spouse, Statement showing venue, Statement whether domiciliary or principal proceedings are pending
How is a known creditor informed of probate proceedings?
File a notice to creditors
How is an unknown creditor informed of probate proceedings?
Post an ad in a known newspaper once a week for 2 consecutive weeks
Can a Personal Representative object to a creditor’s claim?
Yes
Must a Personal Representative designate an agent for service of process against the estate?
Yes
Who may serve as Personal Representative?
Individual, an attorney, or trust officer of a corporate business
Who cannot qualify to serve as Personal Representative?
Has been convicted of a felony, is mentally or physically unable to perform the duties, is under the age of 18.
Can a Probate Judge require a Personal Representative to post bond even though the testator waived the requirement?
No
How is the amount of bond determined by the Court?
Based on the value of the estate, the types of assets, the relationship of the personal representative with the decedent, and other relevant facts including the demands of beneficiaries and creditors.
Must a Personal Representative take an oath to faithfully administer the Estate?
Yes
Can more than one Personal Representative be appointed by the Probate Court?
Yes
What should you do if you realize there is a mistake in an already filed Inventory?
File a supplementary or amended inventory
What is gift tax? Who pays it?
A tax on the transfer of property by one individual to another.
The person who makes the gift.
What must accompany a will that is not self-proved?
An oath of witness to will
What pleading/document must a Personal Representative prepare and file with the Petition for Discharge?
Petition for Accounting
What document closes a formal Estate proceeding?
Order of Discharge
What is an Inventory?
A complete physical check of all the assets of the decedent and a listing of said assets and their value at the time of the decedent’s death.
When must the Inventory be filed?
Within 60 days after issuance of letters
What information should be included on the Inventory?
A list of the decedent’s assets and there value.
Can a Personal Representative charge a fee for his services to the Estate?
Yes
What is a will?
A written declaration of a person’s intended distribution of property after death.
What is a trust?
A right of property, real or personal, held by one person for the benefit of another.
What is the role of a Trustee with regard to the trust?
The trustee manages the assets that are in the trust
What is the name of the creator of a trust?
Settlor
What is a Revocable Living Trust?
A trust that the settlor has a right or power to revoke.
What is an Irrevocable Living Trust?
A trust that may not be revoked by the settlor after its creation.
What are the powers of a Trustee?
Sell assets, lease property, carry on a business, lend or borrow money, hire professionals.
What are the duties of a Trustee?
Duty to administer trust according to its terms; Duty of performance & due care; Duty of loyalty; Duty to account for profits & losses; Duty to invest trust property
What is the name of the property which forms the Trust?
Principal
What is a Spendthrift Trust?
A trust created to provide a fund for the maintenance of a beneficiary and at the same time to secure it against his wastefulness.
What is a Sprinkling Trust?
A trust in which the income or principal is distributed amongst the members of a designated class in amounts and proportions determined by the discretion of the trustee.
What are the possible purposes for establishing a trust?
The avoidance of probate, The control of assets after death by the creator of the trust
What is a Totten Trust?
A trust created by the deposit of a person’s money in the name of the account holder as trustee for another.
Why might a Court remove a Trustee?
Lack of capacity, serious breach of trust, refusal to post bond when it is required, refusal to account for expenditures, crime of dishonesty, prolonged absence from the state
What is an Express Trust?
Created in explicit terms for an express purpose
What are the elements of an Express Trust?
Intent, Named trustee, Beneficiary is named, Transfer of property
What is a Resulting Trust?
Created by operation of law from circumstances implied from the intentions of the parties
What is a Private Trust?
A trust created for the financial benefit of a designated person or class of persons, clearly identified by the terms of the trust.
What is a Charitable Trust?
A trust created for a charity, and should that charity no longer exist at the time of the transfer another like/similar charity would be named.
What are the elements of a Charitable Trust?
Intent to create a trust, Trustee is named, Beneficiary is named, Transfer of property, Charitable purpose is set forth
Does a Charitable Trust need to have a known/named beneficiary?
No
Is it possible to change an Irrevocable Trust?
Cannot be changed or the property returned after it has been created, terms may be changed during the settlor’s life, but the trust continues
Is a trust invalidated if it has no Trustee?
No – If there is no trustee named the trust will not fail
Can a sole Trustee be a sole Beneficiary?
No
Can a trustee profit from trust property without the consent of the beneficiaries if acting in good faith?
No
Is an oral trust legal in the State of Florida?
No
What is a pour-over will?
A will provision in which the testator directs the residue of the estate to go to an existing living trust
What are two possible advantages of a trust over a will?
Can avoid probate, You can make it irrevocable
What is the Doctrine of Cy Pres?
An equity court may order a gift intended for a charity that is now nonexistent to be given to another charity whose purpose is as near as possible to the purpose of the original charity named by the settlor
If there are 2 Personal Representatives for an estate, does each need his own attorney?
No
How long must a Probate Court keep a deposited will?
20 years
Is a bond required if a corporation is named Personal Representative?
No
Why would a paralegal need to document information about non-probate property?
Non-probate assets are not subject to administration by the decedent’s personal representative.
How many years of decedent’s prior tax returns should a Personal Representative collect?
3 years
What is Summary Administration?
A type of probate proceeding for small estates. To be eligible the estate must contain less than $75K in non-exempt assets.
What is Ancillary Administration?
Additional administration used to dispose of and distribute that portion of the decedent’s estate located in a state other than the decedent’s domiciliary state.
What is the time of accrual of a Personal Representative’s duties?
Duties accrue when the PR is appointed
What is the time of accrual of a Personal Representative’s powers?
Powers accrue when they relate back in time to give those acts the same effect as they would have after appointment
Explain how a tickler system is used for Estate Administration.
It helps avoid forgetting any important steps or dates in the administration of the estate.
To whom must a Notice of Administration be sent?
The decedent’s surviving spouse, all beneficiaries, trustee, persons who may be entitled to exempt property.
Why might a Personal Representative be removed?
The personal representative is incapacitated, Physical or mental incapacity rendering the personal representative incapable of the discharge of his or her duties, Failure to account for the sale of property or to produce and exhibit the assets of the estate when so required, Wasting or maladministration of the estate, Failure to give bond or security for any purpose, Conviction of a felony
What transactions may a Personal Representative undertake?
Borrow money, pay taxes, sell mortgage or lease property, invest funds, retain assets
Why is it important to receive date of death values for decedent’s property?
It is required by statute, inventory, and taxes
Name the documents a paralegal would need to generate in order to open an Estate Administration in Florida.
Oath of Office, Order for Hearing the Petition to Prove a Will, Notice of the Order for Hearing, Petition for Probate of Will, Petition for Administration, Order Admitting the Will
How are attorney’s fees for probate administration decided?
2.5% of 1st 3 million, 2% of the remaining $200K
What must be submitted with a will written in a foreign language?
A true and complete English translation.
What is a Curator?
A person who can handle the administration of the estate if the PR cannot
Why might a Curator be appointed?
When a personal representative is removed
What is Medicare?
Not need based, provides hospital and medical care insurance for people that are 65 or older.
What is Medicaid?
Pays medical treatment and housing expenses sometimes, need based.
What is Social Security?
Not based on financial need, based on the person’s age and how much you put into the system. Or. The Federal Old Age, Survivors, and Disability Insurance (OASDI)
What is Supplemental Security Income?
Need based, payment to low income people who are age 65 or older, blind or disabled in some other way
What is long-term care?
The support that disabled, frail, or chronically ill people need when they can no longer care for themselves.
What are the ways in which long-term care can be financed?
Social Security, Insurance, Personal Assets, Medicare
What are the 4 pats of Medicare?
Medicare Part A, Part B, Part C, and Part D
What are the tax advantages of a long-term care policy?
Benefit payments from long-term care insurance policies are treated as tax-free income and are not subject to federal taxation, premium payments for a tax-qualified long-term care insurance policy are deductible as personal medical expenses
What are the names of the 4 tax returns most often seen in Estate Administration?
1040 Personal Return, 1041 Estate Income tax return, 709 Gift tax return if you want to give more than 14k a year, 706 if it is a big estate tax
What is the 2015 yearly exclusion for gift tax?
$14,000
What happens if you give another more than the annual allotted gift tax exclusion in the same year?
It must be reported as a taxable gift, however, you can apply the gift towards your lifetime exclusion from the Federal estate tax.
What is the 2015 estate tax exclusion?
$5.43 million
What is the purpose of an estate plan?
To help you examine your financial needs and assets in order to make sure that your heirs are provided for in the best possible way, including lifetime planning as well as disposition of property at death.
What is Florida’s state estate tax rate?
Florida does not have an estate tax.
What is the Federal Estate tax rate?
40%
What 2 types of documents are most often used in estate planning?
Letters of administration
What is the Marital Deduction?
An unlimited amount of the decedent’s gross estate, which may be given to the surviving spouse without being subject to federal estate tax levied against the decedent’s estate.
What is Estate Equalization?
Rearranging property ownership of spouses total estate assets so that each spouses individual estate has approximately the same value.
What is a Charitable Remainder Unitrust?
Trust in which a fixed percentage of not less than 5 percent of the fair market value of the trust property is determined annually and is given to a beneficiary for life, and after death, the remainder is given to charity.
What is a Charitable Remainder Annuity Trust?
Trust in which the settlor or a beneficiary retains the income from the trust for a time period after which the remainder is given to charity.
What is a Bypass Trust?
A portion of the deceased spouse’s estate that passes to a trust rather than directly to the surviving spouse
How long does a surviving spouse have to elect to take his/her Elective Share?
No later than 6 months after the Notice of Administration
What are the 6 Activities of Daily Living (ADL)?
Bathing, Dressing, Eating, Toileting, Continence, Transferring
What is a General Power of Appointment?
Created in a will or trust and gives a person the authority to select the person who is to receive and enjoy an estate or trust fund after the donee’s death.
What is a Special Power of Appointment?
A power of appointment that cannot be exercised in favor of the donee or his estate, but only in favor of an identifiable person(s) other than the donee.
What is a Life Insurance Trust?
A trust that cannot be revoked or amended once established by a settlor, who assigns the ownership of a new or existing life insurance policy on the settlor’s life
What are the benefit’s of a Life Insurance Trust?
The trust is the owner of the insurance policy, which keeps the proceeds of the life insurance out of your taxable estate. Gifts made to fund the insurance premiums reduce your taxable estate.
What are Incidents of Ownership?
The right of the insured or the estate to the economic benefits of an insurance policy.
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