Probate and Administration

Question 1

What Is probate property?

Answer 1

It is property that passes under T’s will or by intestacy through court supervision.

Question 2

How do probate procedures work with regard to
-> the jurisdiction being used
-> notice requirement
-> timing requirement

Answer 2

Jurisdiction
-> the place where D is domiciled at the time of death has jurisdiction over D’s personal property and any real property located there

Notice
-> given to interested parties

Timing
-> CL - a will could be probated at any time
-> UPC - probate proceedings must be brought within three years of death

Question 3

What are the rules regarding creditor’s claim in terms of probate proceedings:
-> period of limitations
-> notice
-> priority of claims

Answer 3

Period of limitations
-> a claim must be made within a specified period after probate is opened (period is determined by state statute)

Notice
-> the personal representatives of the estate must give creditors notice of the probate proceedings

Priority of claims
-> administrative expenses
-> last medical expenses and funeral expenses
-> family allowance
-> tax claims
-> secured claims
-> judgments against D
-> all other claims

Question 4

Who is the personal representative of the estate in probate and administration procedures?

Answer 4

Either
-> executor (named in will)
OR
-> administrator (appointed by the court)

Question 5

What is the priority of appointment with regards to a personal representative?

Answer 5

Priority of appointment
-> the person named in the will
-> the surviving spouse who is a devisee
-> the surviving spouse
-> other heirs
-> any creditor (45 days after death)

Question 6

What are the principal duties of a personal representative?

Answer 6

Principal duties are:
-> provide notice to legatees, heirs, and claimants
-> inventory, collect, and manage D’s assets
-> receive and pay claims of creditors and tax collectors
-> distribute remaining assets

Question 7

Does a personal representative owe a fiduciary duty to T?

What is a personal representative’s common law liability?

What is a personal representative’s UPC liability?

Answer 7

Yes
-> owes the highest duty of loyalty and care to those represented

CL
-> can be personally liable for the actions of the estate

UPC
-> can only be sued in a representative capacity for breach of fiduciary duty