Probate Administration and Powers Flashcards
UPC Probate
Probate proceedings must be brought within 3 years of death
Creditors Claims
- PR must give notice to creditors (otherwise they get more time to file)
- Priority of claims is set by statute
Personal Representative
Named in will (executor) or appointed by the court (administrator) overseer of winding up of T’s affairs
Order of Preferred Personal Reps
- Named in will
- Surviving devisee spouse
- Other devisee
- Surviving Spouse
Personal Representative Duties
- Provide notice
- Inventory and collect assets
- Manage assets
- Receive and pay claims of creditors and tax collectors
- Distribute remaining assets
Personal Rep Fiduciary Duties
Care and Loyalty
Not released until Court discharges them
Powers of Appointment
- General Power of Appointment
- Special Power of Appointment
Authority to manage certain property
Cannot transfer
May be testamentary or presently exercisable
General Power of Appointment
No restrictions or conditions on donee’s exercise of power
If exercised, creditors can claim property
If not, goes back to estate
Special Power of Appointent
- Exclusive - The donor chooses specific beneficiaries, and the donee cannot appoint to themselves or their creditors. Creditors cannot reach the property
- Nonexclusive - The donee must distribute fairly among a group (e.g., grandchildren) and cannot exclude anyone. If the donee doesn’t act, the court distributes it equally.
Powers of Attorney
Authorization to act on behalf of someone for legal or business matters
**Must be in writing, signed, and dated by mentally competent individual
Reasonable compensation is allowed
General POA
Handle all affiars during a period of time - very broad
Special POA
Limits powers to a certain function and duration
Advanded Healthcare Directives (AHCD)
Appoints agent to make healthcare decisions when they cannot (ie unconcious, mentally incompetent, otherwise incapacitated)
Effective upon incapacitation
Can also be done through a living will
AHCD Execution Requirements
Writing, signed, witness or notarized
AHCD Revocation
Revocations becomes effective when communicated to primary physician
UHCDA says it must be in signed writing (only seven states)
AHCD Eligible Agents
- At least 18 years old
- May be related or not
- Surrogate may serve if chosen cannot (spouse, adult child, parent, adult sibling, someone who has special concern and knows values)
AHCD Agent Actions
Must act in accordance with Principal’s instructions or wishes, if none, then best interest
Durable Power of Attorney
Continues until death of principle
DPoA Duties
- Exercise powers to benefit of principal in line with their expectations
- Act in good faith
- Reasonable care, competence, diligence
May be revoked at ANY time
Durable Healthcare Power of Attorney Liability
- Shielded from liability for decisions made in good faith
- Only accountable for intentional misconduct, not unknowingly doing something wrong
- There to encourage acceptance of the DPA responsibility
