Probate and Estate Administration

Question 1

What must be shown during the probate proceeding in order for the will to take effect?

Answer 1

1. The testator is dead
2. The formalities of execution were observed
3. The notice requirements for probate were complied with

Question 2

What notice are creditors due in probate?

Answer 2

The testator’s representative must mail or personally deliver notice to creditors whoa re known or are reasonably ascertainable.

Question 3

What is abatement?

Answer 3

Abatement is the process of reducing testamentary gifts in cases where the estate assets are not sufficient to pay all claims against the estate and satisfy all bequests and devises.

Question 4

What is the default order of abatement?

Answer 4

1. Property passing by intestacy
2. The residuary estate
3. General legacies, which abate pro rata
4. Specific devises and bequests

Question 5

What is the priority of claims against a testator’s estate?

Answer 5

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

Question 6

How are liens on specific bequests treated in majority and minority jurisdictions?

Answer 6

Majority: they are left on the specific bequest even if the will has a general provision to pay all debts

Minority: the beneficiary is able to have liens for which the testator was personally liable exonerated using funds from the residuary estate.

Question 7

Where a will is ambiguous, what does the court attempt to discern?

Answer 7

the intent of the testator.

Question 8

Where is the first place a court looks to discern the intent of the testator?

Answer 8

Within the four corners of the will.

Question 9

What intent is controlling?

Answer 9

The testator’s intent at the time of the signing of the will.

Question 10

What testimony is allowed to evidence the testator’s intent?

Answer 10

Testimony of the testator’s surrounding circumstances.

BUT NEVER declarations claimed to have been made by the testator himself.

Question 11

What rules of construction do courts follow when intent cannot be shown?

Answer 11

1. Favor those who would take intestate
2. Favor the construction that avoids intestacy
3. Favor the construction that is consistent with the perceived plan of disposition
4. Every portion of the will should be given effect if possible
5. Between totally inconsistent clauses, the later is most likely to be final