Probate

Question 1

What is probate?

Answer 1

A court system designed to figure out what assets someone has, pay off creditors, and distribute the remaining assets

Question 2

What property is subject to probate?

Answer 2

Property held by the decedent alone or as a tenant in common (e.g., house, bank account)

Question 3

What property is NOT subject to probate?

Answer 3

Property held in joint tenancy, life insurance, trusts, retirement benefits (pensions, IRAs)

Question 4

What are the requirements for a will to be valid?

Answer 4

Must be (1) in writing; (2) signed by testator; (3) signed by two witnesses

Question 5

What is the general probate process?

Answer 5

The court appoints a personal representative; the PR petitions the court (e.g., to admit the will); the will is proved and can be challenged; PR pays taxes and debts; PR oversees distribution of remaining assets

Question 6

Name four probate avoidance devices (aka lifetime transfers or will substitutes)

Answer 6

Trusts; joint tenancies; life insurance; payable-on-death accounts

Question 7

What is a guardianship or conservatorship?

Answer 7

The appointment of another person to act on another’s behalf when they can’t handle their own affairs for any reason (e.g., minor, an incompetent adult)

Question 8

What is the person who needs a guardian appointed for them called?

Answer 8

Ward

Question 9

When is “guardian” versus “conservator” appropriate?

Answer 9

“Guardian” protects the person; “Conservator” protects property.

*some states only use the term “guardian”

Question 10

Can a third-party beneficiary bring a malpractice claim against the document-drafting lawyer?

Answer 10

Yes!

Notes:
In most states, lack of privity is not a defense. Consider whether the SOL runs from the date of the document or date of death.