Probate and Estate Administration

Question 1

Probate

Answer 1

The proceding 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

Personal Representative

Answer 2

The person appointed to carry out the estate administration.

If named in the will, personal representative = executor.

If not named in the will, personal representative = administrator.

Question 3

Primary Probate Jurisdiction

Answer 3

The state of teh decedent’s domicile at the time of death.

Question 4

Ancillary Probate Jurisdiction

Answer 4

Wherever the decedent’s assets are located.

Question 5

Appointment of Personal Representative

Answer 5

Any person who has capacity to contract may serve as a personal representative.

• If named in the will, they will be appointed unless disqualified.
• Personal representative must file a bond unless the testator has provided in the will that no bond is required or if state law does not require a bond.

Question 6

Powers and Duties of Personal Representative

Answer 6

Functions of Personal Representative:
* Give notice to devisees, heirs, and claimants against the estate;
* Discover and collect the decedent’s probate assets and file an inventory;
* Manage the assets of the estate during administration;
* Pay expenses of administration, claims against the estate, and taxes;
* Distribute property.

• Personal representative serves in a fiduciary capacity.
• Personal representative is primarily a liquidator and must get court approval before borrowing money, operating a business, or selling property.
• Some states do allow the personal representative to administer the estate without court involvement.

Question 7

Compensation of Personal Representative

Answer 7

• Rates of compensation are governed by statute.
• If no statute, then court has discretion.
• Testator may provide compensation by means of a gift in the will or provide that executor has to serve without pay.

Question 8

Creditors’ Claims

Answer 8

Personal representative MUST give notice of adminsitration to creditors of the estate.

Creditors must file claims within specific period of time or the claims may be barred.

Question 9

Order of Payment For Creditors’ Claims

Answer 9

1. Adminstration Expenses
2. Funeral Expenses and expenses at last illness
3. Family allowance
4. Debts given preference under federal law
5. Secured Claims
6. Judgments entered agaisnt the decedent during his lifetime
7. All other claims