probate and estate administration Flashcards
meaning of probate vs. nonprobate
probate = proceeding in which a testamentary instrument is judicially established as the last will of the decadent / where heirs are judicially determined
nonprobate = describes things that transfer property at death that are not wills and that do not go through the same judicial probate procedures
explain who has the burden of proof to show that the will was duly executed during probate
- ex parte probate
- inter partes probate
- holographic will
- will probated in another state
GENERAL RULE:
Burden of proof is on the proponents to show by preponderance of the evidence that will was duly executed
EX PARTE PROBATE
- No notice to interested parties required
– Self-proving affidavits takes place of witnesses; otherwise, need witness to testify
– Must give written notice of proceeding to decedent’s heirs and other interest parties within 30 days after the probate
– Parties may appeal to circuit court within 6 months from time probate order is entered
INTERPARTES PROBATE
– Notice to interested parties and right to a jury trial
– Same procedures as ex parte proceeding, except that on motion of interested party, the court may require testimony of attesting Ws, even if self-proved
HOLOGRAPHIC WILLS
- two disinterested persons must testify that will was wholly in T’s handwriting
WILLS PROBATED IN ANOTHER STATE WHEN DECEDENT OWNED REAL AND PERSONAL PROPERTY IN VA
– Will can be admitted to probate in VA by filing authenticated copy of will and certificate of probate
– It is assumed will is validly executed as to personal property
— If real property involved, the will must have been validly executed under VA law [ EXCEPTION: if will is self-proved under the laws and statutes of other states, it is conclusively presumed that the will was validly executed as to VA property ]
what is the probate estate
PROBATE PORTION
Probate assets can include vehicles, real estate, bank and brokerage accounts, and personal belongings (for example, jewelry, home furnishings, artwork, and collections).
Life insurance proceeds that are payable to the estate (not a named beneficiary) are also probate assets.
-
NONPROBATE ASSETS THAT ARE INCLUDED IN THE INVENTORY only when [a] probate estate is insufficient to pay debts, taxes, and expenses of the administration, including statutory allowances, AND [b] an action is brought against the surviving party within 2 years after decedent’s death:
(1) joint accounts [only decedent’s interest]
(2) POD accounts [entire]
(3) Totten trusts [entire]
what is nonprobate property
PROPERTY PASSING BY K:
- life insurance
- employee benefits
PROPERTY PASSING BY RIGHT OF SURVIVORSHIP
BANK ACCOUNTS
- joint
- POD
OTHER
- intervivos trusts
- deeds
- bonds, securities, promissory notes
probate jurisdiction
Venue:
Circuit court in the county or city where:
(1) Decedent resided,
or, if none,
(2) where decedent owned real property
or, if none,
(3) where decedent owned personal property
time limit for probate
generally no time limit
BUT
if will not offered for probate within 1 year after testator’s death, a bona fide purchaser of real property from an heir or devisee under a prior will is protected
and
A bona fide purchaser of real property from the personal representative or devisee is also protected if a will contest is filed more than one year after the decedent’s death, even if it is ultimately successful.
types of personal representatives
“executor” = personal rep named in a will
“administrator” = personal rep appointed by the court because decedent dies intestate
if executor dies before the will is probated, the court will appoint an administrator
how is personal representative [administrator] appointed
Virginia statute sets an order of priority for appointing administrators during the FIRST 30 DAYS after the decedent’s death
(1) sole distributed or assignee
or
(2) any distributee or their designee who presents written waivers of the right to qualify from all other competent distributees
–
if NO administrator is appointed within 30 days after decedent’s death, the court or clerk may grant administration to the first distributed who applies
= if more than one distributees notifies the clerk or court of intent to qualify after the 30 day period has elapsed, all distributees must be given an opportunity to be heard before administration is granted
–
if after 60 days, NO administrator has been appointed, the clerk may appoint a creditor or any other person
when may nonresidents serve as Personal Reps?
A nonresident individual may serve as a personal representative of
a decedent’s estate but must appoint a resident agent for service of process, or agree to allow the clerk of the court to be served on their behalf.
A corporation not authorized to do business in Virginia cannot serve as a personal representative.
who cannot be a personal representative
a minor
when are trusts subject to probate
when the beneficiary of a trust dies, the corpus of the trust will not be included int he estate, because legal title is held by the trustee.
the trust’s accumulated but undistributed income is subject to probate because it is considered the asset of the beneficiary
duties of personal rep
(1) marshall decedent’s assets
(2) give notice to creditor
(3) pay valid claims
(4) file decedent’s tax forms
(5) winding up the decedent’s affairs
(6) distributing remaining assets according to the will or intestacy statutes
(7) post fiduciary bond equal to value of personal property in the estate [unless will waives the requirement or all of the estate’s takers are named as PRs]
– bank or trust as PR is not required to give bond
– no surety requirement for estate $25k or below
(8) file inventory of estate within 4 months of appointment + furnish list of heirs
(9) within 16 months of qualification of PR, PR must file an accounting and file annual accountings thereafter
reimbursement / compensation of PR
reimbursement for reasonable expenses
reasonable compensation
If the personal representative has the power to sell property, they are generally allowed a commission of 5% on receipts of sale of property.
powers of Personal Representative
(1) appoint agents and professional advisors
(2) sue and be sued on contracts and all other claims of or against the decedent
(3) compromise claims of or against the estate without court approval
(4) Dispositions to a minor or incapacitated beneficiary may be made directly to the beneficiary or to her relative, friend, guardian, conser- vator, or committee, to be expended by such person for the benefi- ciary’s education, maintenance, support, or benefit.
(5) action for wrongful death must be brought in the name of the PR
abatement
If assets owned at death are not sufficient to pay all of a testator’s debts, the debts and costs of administering the estate, and also satisfy all of the gifts made in the testator’s will, absent a contrary will provision, the source of payment claims is:
(1) personal property passing by intestacy
(2) personal property in the residuary estate
(3) general legacies [abate pro rata]
* general devise = money to be paid out of estate’s general assets
(4) specific and demonstrative bequests of personal property
*demonstrative = gift [usually money] to be paid from a specific source
(5) If the personal property is exhausted, the real property abates in the same order.
