Probate and Estate Administration Flashcards
What happens after a person dies with respect to nonprobate property?
Personal representative must collect and inventory probate, but not nonprobate assets
* Nonprobate assets include will substitutes, which pass pursuant to the instrument that creates them, or assets exempted from probate (e.g., life insurance, inter vivos trust, JT with right of survivorship, bank accounts)
Where do you have jurisdiction to probate a decedent’s estate and where is venue proper?
Circuit courts have jurisdiction
Proper venue is person’s domicile at time of death
* If they owned land in another state, you may have to open probate in that other state
* If didn’t reside, county/city where decedent owned real property
* If no real property, county/city where decedent died
Who is a personal representative and what are they called?
The person responsible for carrying out estate administration
* Executor–named in a will
* Administrator–appointed by the court
What are basic steps for personal representative?
(1) After appointed by court
(2) And properly qualified (i.e., posting bond if required)
* Personal representative must post fiduciary bond equal to value of personal porperty in the estate unless decedent’s will waives requirement or all takers named as personal representatives
(3) Take oath of office
(4) Give notice to heirs/beneficiaries and creditors
What is the significance of abatement?
The process by which we reduce gifts
What is the order of abatement?
(1) Intestate property
(2) Personal property in the residuary estate
(3) General legacies, which abate pro rata
(4) Specific and demonstrative gifts of personal property
(5) If personal property exhausted, real property abates in same order
What if a debt is owed on a specific gift (e.g., a mortgage)?
Liens on specifically bequeathed property are not paid off by the estate unless directed in the will (but general directive to “pay debts” not sufficient–mortgage remains)
* If lien was palced on property after testator was incapacitated, beneficiary entitled to exoneration
What is a “small estate,” and what is its significance?
An estate worth $50,000 or lower and includes ONLY personal property (i.e., not real property or nonprobate property)
* Informal affidavit procedure used instead of formal estate administration
Who is entitled to priority for appointment as administrator during the first 30 days?
(1) A sole distributee or their designee OR
(2) Any distributee or their designee who presents written waivers of the right to qualify from all other competent distributees
What happens if no administrator is appointed within 30 days after decedent’s death?
Court or clerk may grant administration to the first distributee who applies
* If more than one notifies clerk/court of intent to qualify, all such distributees must be given opportunity to be heard before administration granted
What happens if no administrator has been appointed after 60 days?
Clerk of the court may appoint a creditor or any other person
Who is entitled to priority for appointment as administrator during the first 30 days?
(1) A sole distributee or their designee OR
(2) Any distributee or their designee who presents written waivers of the right to qualify from all other competent distributees
What happens if no administrator is appointed within 30 days after decedent’s death?
Court or clerk may grant administration to the first distributee who applies
* If more than one notifies clerk/court of intent to qualify, all such distributees must be given opportunity to be heard before administration granted
May a nonresident serve as a personal representative?
Yes–must appoint resident agent for service of process or agree to allow the clerk of the court to be served on their behalf
* Corporation not authorized to do business in VA cannot serve as personal representative
* Must post a surety bond even if requirement waived in will
What happens if no administrator has been appointed after 60 days?
Clerk of the court may appoint a creditor or any other person
