Probate

Question 1

Classification of property

Answer 1

Probate property passes by will or, if there is no valid will, by intestate succession.

Nonprobate property passes by a non-will instrument, e.g.:

(1) Deed;
(2) Trust;
(3) Joint tenancy with right of survivorship;
(4) Payable-on-death (“POD”) contract.

Question 2

Filing: Uniform Probate Code

Answer 2

Under the UPC, probate proceedings must be brought within three years of death.

After three years, there is a presumption of intestacy.

Question 3

Personal representative

Answer 3

Any person with the capacity to contract may serve as a personal representative.

The personal representative acts on behalf of the estate during the probate process:

• If appointed by the court, she is called the administrator;
• If named in the will, she is called the executor.

Question 4

Personal representative: duties

Answer 4

The personal representative:

• Inventories and appraises the estate;
• Locates and contacts interested parties, including creditors;
• Satisfies debts, including taxes, burial expenses, and support; and
• Closes the estate.

Question 5

Personal representative: fiduciary duties

Answer 5

The personal representative, who is paid from the estate, owes the estate duties of loyalty and care.

She may not engage in self dealing.

Question 6

Personal representative: selection

Answer 6

If the will does not name a personal representative, the following priority applies:

(1) A surviving spouse who is a devisee;
(2) Other devisees;
(3) A surviving spouse who is not a devisee;
(4) Other heirs of the decedent; or
(5) Any creditor, if 45 days have passed since the decedent’s death.

Question 7

Power of appointment

Answer 7

A power of appointment is the ability of the decedent (the “donor”) to select an individual (the “donee”) to dispose of certain property under the will.

The power is personal to the donee, meaning that the donee may not transfer the power to anyone else.

Question 8

Power of appointment: general

Answer 8

A general power of appointment is one without restrictions:

• The donee can appoint herself or one of the creditors as the owner of a property;
• If the donee fails to exercise the power, the property reverts back to the donor’s estate.

Question 9

Power of appointment: special

Answer 9

A special power of appointment is limited by the donor.

• Under non-exclusive power:

The donor designates certain individuals or groups as objects of the power—e.g., grandchildren, or another class of individuals.

It is non exclusive because the donee cannot exclude a member of the class.

• Under exclusive power, the donor excludes certain individuals or groups as objects of the power—e.g., the donee and her creditors.