Probate and Estate Administration Flashcards
What is probate?
“probate” = process by which:
- will is judicially established as valid
- decedent’s heirs are judicially determined
What is the primary place of administration?
- county and state of domicile at time of death
In CA what is the time limit for probating a 2nd will?
The late of:
- 120 days after issuance of order admitting 1st will to probate OR determining decedent to be intestate;
- 60 days after proponent 1st obtains knowledge of the will
What are the powers and duties of personal representatives? (administrator/executor)?
- give notice to devisees, heirs, and claimant against estate;
- discover and collect decedent’s assets and file an inventory
- manage the assets of estate during administration
- pay expenses of administrations, claims against estate, and taxes
- distribute property
LIKE Trustee –> this person is a fiduciary
Unlike Trusts –> personal rep is primarily a liquidator and must generally have court approval for such activities as borrowing money, operating a business, or selling property
What rules apply w regards to compensation of personal representative?
Personal representative is entitled to compensation for his services
If will provides for compensation –> will be the full and only compensation
If will does not –> they get statutory compensation acc to value of estate
NOTE –> court may deny compensation if personal rep has engaged in dishonest, fraudulent, or bad faith conduct
What rules apply with regards to creditor’s claims?
What are personal rep’s responsibilities?
Personal rep –> must give notice of administration to creditors of the estate
Creditor’s claims must be filed by LATER of:
- 4 months after letters of administration are first issues; OR
- 60 days after notice of administration is mailed or delivered
With regards to creditors, what is the priority of claims?
- debts owed to USA or CA
- administration expenses
- obligations secured by mortgage, deed of trust, or other lien
- funeral expenses
- expenses of last illness
- family allowance
- wage claims; AND
- general debts, including judgments not secured by lien and all other debts
What is abatement?
What is the order of abatement?
Abatement = the process of reducing testamentary gifts in cases where estate assets are not sufficient
- property passing by intestacy
- residuary estate
- general gifts to persons other than relatives
- general gifts to relatives
- specific gifts to persons other than relatives
- specific gifts to relatives
Within each category gifts abate pro-rata
What is abatement?
What is the order of abatement?
Abatement = the process of reducing testamentary gifts in cases where estate assets are not sufficient
Unless otherwise provided by will:
- property passing by intestacy
- residuary estate
- general gifts to persons other than relatives
- general gifts to relatives
- specific gifts to persons other than relatives
- specific gifts to relatives
NOTE –> Within each category gifts abate pro-rata
How are demonstrative gifts treated with regards to order of abatement?
For abatement purposes:
To extent property from which gift was to be satisfied is in the estate at death, demonstrative legacies are treated as specific legacies
To extent the fund is insufficient, a demonstrative legacy is treated as a general legacy
What is the rule w regards to exoneration of liens in CA?
In CA -
liens on specifically devised property are NOT exonerated, unless will specifically so provides
What guidelines apply when a will or will provision is ambiguous?
If will provision is ambiguous, and court is unable to find T’s intent within four corners of the will –>
- Extrinsic evidence is admissible to explain the provision
HOWEVER –> T’s own declarations are generally INADMISSIBLE except when a description of a beneficiary or property describes more than one person or more than one item of property
What rules of construction apply when there is no evidence of T’s intent?
- favor those who would take INTESTATE
- favor construction that AVOIDS intestacy
- Favor construction that is consistent with perceived PLAN of disposition
- Every PORTION of will should be given effect, if possible
- between totally inconsistent clauses, the LATTER is more likely the final intent
