Nomenclature Flashcards
Probate
Literal translation: “to prove”
A ct preceding in which:
(i) it is judicially determined that the decedent left a validly executed will (or that the decedent died w/o a will and his intestate heirs are determined)
(ii) a personal rep (called an executor if named in the will, an administrator if appointed by the ct) is appointed to administer the decedent’s estate and wind up the decedent’s affairs.
(iii) Letters testamentary or letters of administration are issued by the ct showing the personal representative’s authority to represent the estate in dealing with 3rd parties.
Testator
Person who executes a will
Principle Duties of a personal representative are:
(i) take possession and control of the assets that compromise the estate
(ii) give notice to creditors of the assets that compromise the estate
(iii) satisfy the tax authorities
(iv) distribute the remaining estate to the will beneficiaries or heirs.
Interstate distribution rules apply when:
(i) decedent left no will (or the decedent’s will was not properly executed),
(ii) decedent left a valid will but the will does not make a complete disposition of the estate (resulting in partial intestacy), OR
(iii) an heir successfully contests the will on the ground of lack of testamentary capacity or undue influence, and the will is denied probate.
Heirs
Persons who take by intestate succession
Beneficiaries
Aka devisees or legatees
Persons who take under a will.
Specific devise or bequest
Gift of a specific asset; only that asset can satisfy the gift
“I devise [Blackacre][my Steinway piano] to my son John.”
Demonstrative legacy
Rare
Gift of a general dollar amt to be paid from a specific source.
“I bequeath $25,000, to be paid out of the proceeds of my Exxon stock, to Sally.”
General legacy
Gift of a general dollar amt that is payable out of the general assets of the estate and does not require the delivery of Amy particular item in satisfaction of the gift.
“I bequeath the sum of $10,000 to my nephew Ned.”
Residuary gift
Gift of all of the estate that remains after expenses of administration and debts have been paid, and after all specific and general legacies have been satisfied.
“I give all of the rest, residue and remainder of my estate to my wife Wendy.”
Codicil
A later amendment or supplement to a will. A codicil must be executed with the same formalities as a will.
Nonprobate assets
Interests in prop that pass at death but which are not subject to disposition by will or intestate succession, and are not part of the estate for estate administration purposes.
Types of nonprobate assets
Aka nontestamentary assets
(i) Property passing by right of survivorship (joint tenancy, tenancy by the entirety, joint and survivor bank accounts- one joint tenant cannot devise her interest in a joint tenancy property, because title automatically and immediately passes by right of survivorship to the survivor)
(ii) property passing by contract (life insurance proceeds, employee death benefits, etc) where a K governs the naming and changing of beneficiaries;
(iii) Property held in trust, including am revocable trust, where the trust instrument names the beneficiaries; AND
(iv) property over which the decedent held a power of appointment
Uniform Probate Code
18 states are considered UPC States
2 kinds of UPC–Original in 1970 and the Revised in 1990 & 1995
Independent administration
A procedure under which the major steps are taken in the administration of a decedent’s probate estate that are done with little to no court involvement.
