Probate and Estate Administration

Question 1

Probate - Definition

Answer 1

• proceeding in which an instrument is judicially determined to be the will of the decedent or in which a decedent’s heirs are determined

Question 2

Probate + Personal Reps

Answer 2

• personal reps are appointed to carry out estate administration
  -> executor if named in will
  -> administrator if not named in will

Question 3

Probate - Testate vs Intestate

Answer 3

• testate estates must go through some form of court proceeding to have the will determined to be valid
• intestate need a court proceeding so heirs are judicially determined

Question 4

Probate - Jurisdiction

Answer 4

• primary jurisdiction = state of the decedent’s domicile at time of death
• ancillary jurisdiction - may be wherever decedent’s assets located

Question 5

Appointment of Personal Representatives

Answer 5

• any person who has capacity to contract may serve as personal rep
• if executor named in will, appointed as pers rep unless disqualified
• administrator appointed if no exec named in will, exec disqualified, or estate is intestate

Question 6

Personal Representatives - Primary Functions

Answer 6

• give notice to devisees, heirs, + claimants against estate
• discover + collect decedent’s probate assets + file an inventory
• manage the assets of the estate during administration
• pay expenses of administration, claims against estate, + taxes
• distribute property
• note that personal rep also serves in a fiduciary capacity

Question 7

Compensation of Personal Representative

Answer 7

• personal rep is entitled to comp for services
• rates of comp may be governed by statute
  -> if no controlling statute, court has discretion to award reasonable comp
• testator may provide comp by means of gift in will or provide that the executor is to serve w/o pay
• court may deny comp where personal rep has engaged in dishonest or fraudulent conduct or has neglected their duties

Question 8

Creditors’ Claims

Answer 8

• personal rep must give notice of admin to creditors of estate
• creditors must then file their claims w/in s specified period of time or the claims may be barred

Question 9

General Order in Which Creditors’ Claims Paid

Answer 9

1- administration expenses
2- funeral expenses and expenses of the last illness
3- family allowance
4- debts given preferences under fed law
5- secured claims
6- judgments entered against decedent during his lifetime
7- all other claims