Pg 2

Question 1

What is probate property?

Answer 1

Any property administered and distributed through the probate process that passes by will or intestate succession.

Question 2

What is the primary function of probate?

Answer 2

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.

Question 3

What are the major downsides of probate?

Answer 3

It is slow, cumbersome (need court approval for everything), expensive, and it can be embarrassing because everything is in the public record.

Question 4

What is a good thing about probate?

Answer 4

The statute of limitation time frames are usually shorter for people to make claims against the decedent’s estate.

Question 5

After someone dies, what happens with their probate estate?

Answer 5

It becomes a legal entity that steps into the decedent’s shoes and then creditors must collect from the decedent’s estate.

Question 6

What are the two categories of probate property?

Answer 6

• property that passes under a will

– property that passes by intestate succession

Question 7

Do wills have to go through probate?

Answer 7

Yes, and all property that passes through the will does too

Question 8

If there is any probate property that doesn’t pass through the will, what happens?

Answer 8

It passes by the default statutory scheme of intestate succession

Question 9

What are examples of things that would be considered probate items?

Answer 9

– 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]

Question 10

What are the four major things that are always considered to be non-probate?

Answer 10

• 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

Question 11

What is the basic function of the probate system?

Answer 11

• 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

Question 12

What are the two different types of probate?

Answer 12

– common form probate

– solemn form probate

Question 13

What is common form probate?

Answer 13

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.

Question 14

What is solemn form probate?

Answer 14

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.

Question 15

What is the UPC’s unsupervised administration with regard to probate?

Answer 15

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

Question 16

What is the provision that is often made for small estates?

Answer 16

Many states allow any estate that is under a certain dollar amount to avoid probate [usually around $40,000].

Question 17

What are the major steps in the probate process?

Answer 17

– appoint a personal representative
– notify creditors
– resolve disputes
– pay claims
– distribute estate property

Question 18

Where does probate take place?

Answer 18

In a court, because it is a court proceeding

Question 19

What is involved in the stage of probate that involves opening probate?

Answer 19

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

Question 20

What does a personal representative do in probate?

Answer 20

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.

Question 21

What do state statutes say about the classes of people that must get notice of the opening of probate?

Answer 21

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

Question 22

What’s the difference between an executor and an administrator?

Answer 22

• 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.

Question 23

Who settles disputes in probate?

Answer 23

The court

Question 24

How do you determine the governing law for probate?

Answer 24

Decide if the decedent’s estate is being distributed according to intestate succession or if a will is being probated

Question 25

What is the choice of law for personal property being distributed under probate?

Answer 25

The law of the decedent’s domicile or state of residence at death

Question 26

If a California resident died on vacation, what is the state that probate happens in?

Answer 26

California because that was his state of residence at death

Question 27

How is real property distributed in probate?

Answer 27

According to the law of the state it is located in

Question 28

If a decedent was domiciled in California but had a vacation home in Montana, what happens to the Montana property?

Answer 28

An ancillary probate proceeding is opened in Montana to clear title to that property.

Question 29

If there is a will involved, what does the court need in order to do probate?

Answer 29

The original will must be filed with the court

Question 30

What does an executor do?

Answer 30

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

Question 31

Can an executor be accountable to the estate for mistakes that he makes?

Answer 31

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

Question 32

Can an executor be paid for his time and effort?

Answer 32

Yes

Question 33

What is the timeframe for creditors filing claims against the decedent’s estate?

Answer 33

This must be done within a certain timeframe such as one year

Question 34

What is a will contest?

Answer 34

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

Question 35

Does an estate have the power to sue and be sued?

Answer 35

Yes, so a representative might file a claim against the third-party that needs to pay the estate

Question 36

How does a representative manage an estate’s property?

Answer 36

• 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.

Question 37

What is the order of priority for a representative of an estate to pay a creditor’s claims?

Answer 37

– secured creditors before unsecured

– tax claims before third-party claims

Question 38

What is intestate succession?

Answer 38

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

Question 39

What is the purpose behind intestate succession?

Answer 39

To fulfil the probable intent of the decedent and approximate what he would have wanted if he had a will

Question 40

What is the general principle behind intestate succession?

Answer 40

Surviving heirs inherit

Question 41

What takes precedence, a will or intestacy?

Answer 41

The will takes precedence over intestacy, but if there is no will, then intestacy speaks

Question 42

What are the essay elements for intestate succession?

Answer 42

- 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