Pg 2 Flashcards
What is probate property?
Any property administered and distributed through the probate process that passes by will or intestate succession.
What is the primary function of probate?
This is a court administered venue to give clear evidence of title to anyone that receives the decedent’s property. It also protects creditors and provides insulation from creditors.
What are the major downsides of probate?
It is slow, cumbersome (need court approval for everything), expensive, and it can be embarrassing because everything is in the public record.
What is a good thing about probate?
The statute of limitation time frames are usually shorter for people to make claims against the decedent’s estate.
After someone dies, what happens with their probate estate?
It becomes a legal entity that steps into the decedent’s shoes and then creditors must collect from the decedent’s estate.
What are the two categories of probate property?
- property that passes under a will
– property that passes by intestate succession
Do wills have to go through probate?
Yes, and all property that passes through the will does too
If there is any probate property that doesn’t pass through the will, what happens?
It passes by the default statutory scheme of intestate succession
What are examples of things that would be considered probate items?
– checking accounts [unless there is a pay on death feature]
– devise of a car under a will
– decedent’s half interest in real property as a tenant in common [not if it is a joint tenancy]
– decedent’s jewelry
– $25,000 gift under the will
– residue of decedent’s estate [property that is not specified in the will]
What are the four major things that are always considered to be non-probate?
- life INSURANCE proceeds with a designated beneficiary
– property held in INTER VIVOS TRUST for the beneficiary on the decedent’s death
– savings accounts with survivor provisions [PAY ON DEATH]
– interests in real property held as a JOINT TENANCY with right of survivorship
What is the basic function of the probate system?
- it establishes the validity of a will
– takes an inventory of assets
– administers and distributes property of the decedent
The purpose: to transfer title to property from the decedent to others
What are the two different types of probate?
– common form probate
– solemn form probate
What is common form probate?
A fast-track version of probate where there is no dispute about the validity of the will or any significant challenges. This occurs in an ex parte proceeding with no notice or process given to anyone. The will is immediately admitted to probate and the executor starts administering the estate.
What is solemn form probate?
Notice is given to interested parties, the authenticity of the will is established with the testimony of attesting witnesses, the court closely manages the administration of the estate.
What is the UPC’s unsupervised administration with regard to probate?
This is an alternative to standard supervised administration where a representative needs less court supervision and approval and can manage the estate like a trustee
What is the provision that is often made for small estates?
Many states allow any estate that is under a certain dollar amount to avoid probate [usually around $40,000].
What are the major steps in the probate process?
– appoint a personal representative – notify creditors – resolve disputes – pay claims – distribute estate property
Where does probate take place?
In a court, because it is a court proceeding
What is involved in the stage of probate that involves opening probate?
The initial process of filing a petition with the probate court to open probate. This is usually done by a family member through court forms
What does a personal representative do in probate?
This is someone that the court appoints to oversee and manage the decedent’s estate. He notifies interested parties about the proceedings that they have an opportunity to participate.
What do state statutes say about the classes of people that must get notice of the opening of probate?
Usually this is:
- “would be” heirs to the estate under succession
- people named in the will
- creditors of the decedent that the representative has actual knowledge of or he puts a publication notice in the newspapers
What’s the difference between an executor and an administrator?
- the will names the executor
– the court appoints the administrator/representative. This is usually a close family member with a preference for the surviving spouse, adult kids, parents, etc.
Who settles disputes in probate?
The court
How do you determine the governing law for probate?
Decide if the decedent’s estate is being distributed according to intestate succession or if a will is being probated
What is the choice of law for personal property being distributed under probate?
The law of the decedent’s domicile or state of residence at death
If a California resident died on vacation, what is the state that probate happens in?
California because that was his state of residence at death
How is real property distributed in probate?
According to the law of the state it is located in
If a decedent was domiciled in California but had a vacation home in Montana, what happens to the Montana property?
An ancillary probate proceeding is opened in Montana to clear title to that property.
If there is a will involved, what does the court need in order to do probate?
The original will must be filed with the court
What does an executor do?
He is a fiduciary that:
- gathers an inventory of the decedent’s property
- decides whether to distribute or pay claims against the estate
- manages or sells the assets
- acts in the best interest of the estate
Can an executor be accountable to the estate for mistakes that he makes?
Yes, so that’s why it’s a good idea to post a bond as insurance for the estate in case the executor ends up costing the estate money. Although it is often said in a will that the bond is waived
Can an executor be paid for his time and effort?
Yes
What is the timeframe for creditors filing claims against the decedent’s estate?
This must be done within a certain timeframe such as one year
What is a will contest?
When someone contests the validity of the will or something about it, such as:
- a bequest that is in it
- that the will shouldn’t apply and that property should pass through intestate succession
- that one provision should be thrown out
- that the named executor should be dismissed
Does an estate have the power to sue and be sued?
Yes, so a representative might file a claim against the third-party that needs to pay the estate
How does a representative manage an estate’s property?
- he identifies what property the decedent had
– inventories it and decides how much it is worth - collects and tracks down property
– manages the estate and runs any businesses
– decides to sell - keeps up mortgage payments and property taxes
– gives allowances to immediate family until everything is settled - pays undisputed creditor claims like: credit card bills, income taxes, funeral costs (according to the rules on priority)
– resolves disputes and pays all debts.
What is the order of priority for a representative of an estate to pay a creditor’s claims?
– secured creditors before unsecured
– tax claims before third-party claims
What is intestate succession?
This is the statutory default that provides how to distribute a decedent’s property at death if he dies without a will or the will doesn’t govern some of his property
What is the purpose behind intestate succession?
To fulfil the probable intent of the decedent and approximate what he would have wanted if he had a will
What is the general principle behind intestate succession?
Surviving heirs inherit
What takes precedence, a will or intestacy?
The will takes precedence over intestacy, but if there is no will, then intestacy speaks
What are the essay elements for intestate succession?
- identify that there is intestate succession – determine the surviving spouse's share – determine the class of takers that take – distribute property to the surviving heirs within the class of takers
