Probate and Estate Administration

Question 1

What is probate?

Answer 1

The 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

What is a personal representative?

Answer 2

Appointed to carry out the estate administration (called an executor if named in the will, if not, an administrator).

Question 3

What estates must be administered?

Answer 3

Testate estates must have some form of administration. Intestate estates need not be administered if the heirs are able to agree on distribution of the property

Question 4

Where is primary probate jurisdiction?

Answer 4

Decedent’s domicile at time of death

Question 5

Where is there ancillary probate jurisdiction?

Answer 5

Anywhere the decedent’s assets are located

Question 6

Who may serve as a personal representative?

Answer 6

Anyone with capacity to contract

Question 7

What are the primary functions of the personal rep?

Answer 7

(1) give notice to devisees, heirs, and claimants against the estate
(2) discover, collect, and inventory decedent’s assets
(3) Manage the assets
(4) pay expenses, claims and taxes,
(5) distribute property

Question 8

Does the personal rep have the authority to borrow money, operate a business, or sell property?

Answer 8

A personal rep serves in a fiduciary capacity, but unlike a trustee must have court approval for those things

Question 9

Is the personal rep entitled to compensation?

Answer 9

Yes. It may be set by statute or courts. The testator may also provide for compensation. A court will deny compensation to a rep who is dishonest, fraudulent or neglects duties

Question 10

What notice must the personal rep give to estate creditors?

Answer 10

They must give notice to creditors so that creditors may file their claims within the state’s specified period

Question 11

In what order are claims on the estate paid?

Answer 11

(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 their lifetime, (7) all other cliams

Question 12

What is abatement?

Answer 12

The proceed of reducing testamentary gifts in cases where the estate assets ar insufficient to pay all claims against the estate and satisfy all bequests and devises.

Question 13

What is the order of abatement?

Answer 13

If the testator does not set it out in the will, the estates will usually abate as follows: (1) property passing by intestacy, (2) residuary estate, (3) general legacies, and (4) specific bequests and devises

Question 14

How are demonstrative legacies treated for purposes of abatement?

Answer 14

to the extent they can be satisfied from the designated source, demonstrative legacies are treated as specific legacies for abatement purposes. to the extend the fund is insufficient, demonstrative legacies are general

Question 15

Are liens on specifically devised property exonerated?

Answer 15

No unless the will so directs

Question 16

What happens when a will is ambiguous?

Answer 16

If a will is ambiguous and the court cannot find the testator’s intent within the four corners of the will, then extrinsic evidence is admissible to explain it. The testators own declarations will be inadmissible except when a description of a beneficiary or property could refer to more than one person or piece of property

Question 17

What are the rules of construction when there is no evidence of a testator’s intent?

Answer 17

(1) Favor those who would take intestate
(2) Favor the construction that avoids intestacy
(3) Favor the construction consistent with the perceived plan of disposition
(4) Every portion of the will should be given effect, if possible
(5) As between inconsistent clauses, choose the latter