Probate and Estate Administration

Question 1

The primary functions of the personal representative are to:

Answer 1

(i) give notice to devisees, heirs, and claimants against the estate;
(ii) discover and collect the decedent’s assets and file an inventory;
(iii) manage the assets of the estate during administration;
(iv) pay expenses of administration, claims against the estate, and taxes; and
(v) distribute property

Question 2

Creditors’ claims are generally paid in the following order:

Answer 2

(i) administration expenses,
(ii) funeral expenses and expenses of the last illness,
(iii) family allowance,
(iv) debts given preference under federal law,
(v) secured claims,
(vi) judgments entered against the decedent during his lifetime, and
(vii) all other claims

Question 3

abatement

Answer 3

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

If the testator does not set out an order of abatement in his will, estate will usually abate in the following order:

Answer 4

(i) property passing by intestacy,
(ii) the residuary estate
(iii) general legacies, and
(iv) specific bequests and devises

Question 5

For abatement purposes, a demonstrative legacy is treated as a ____________ up to the value of the particular asset, and as a _________ as to the rest.

Answer 5

specific legacy; general legacy

Question 6

special testamentary power of appointment

Answer 6

one that is exercisable only by the donee’s will and is in favor of a specified class of persons that does not include the donee, his estate, his creditors, or the creditors of his estate

Question 7

general testamentary power of appointment

Answer 7

one that is exercisable only by the donee’s will and may be exercised in favor of the donee, his estate, his creditors, of the creditors of his estate.

Question 8

Residuary clause does not, by itself, exercise testamentary power

Answer 8

In nearly every state, a residuary clause, by itself, does not exercise any power of appointment held by the testator.

Question 9

“Blanket” Exercise of Power of Appointment

Answer 9

If a person holding a testamentary power executes a will that devises “all the rest and residue of my property, including any property over which I may have a power of appointment,” this blanket exercise of any power of appointment will be given effect unless the creator of the power called for the power’s exercise by an instrument that specifically referred to the power.

Question 10

specifically devised property that is subject to a lien that secures a note on which the testator was personally liable

Answer 10

• Common law: beneficiary can demand that the lien be paid from the residuary estate so that the lien is exonerated and the property passes free from any encumbrance
• UPC majority rule: beneficiary cannot demand exoneration unless the will specifically directed that the lien be exonerated