Probate and Will Contests

Question 1

What is probate property?

Answer 1

Property that passes under intestacy or under the decedent’s will.

Question 2

What is non-probate property?

Answer 2

Property that passes under an instrument other than a will (joint tenancy property, life insurance, pension plan proceeds, etc.).

Question 3

What are the broad steps for giving away a decedent’s property?

Answer 3

1. Determine what is probate property and what is non-probate property.
2. Give the non-probate property to whomever is identified in the non-probate instrument.
3. Give the remaining property as stated in the will.
4. Give the remaining property through intestacy.

Question 4

What court has jurisdiction over a decedent’s property?

Answer 4

• Personal property: The county in which the decedent was domiciled at the time of their death.
• Real property: The county in which the decedent was domiciled at the time of their death, if the real property is also in that county.
• If the decedent was not domiciled in Pennsylvania: Any county where any of the decedent’s property is located.

Question 5

What notice is required?

Answer 5

All interested parties must be notified before the administrator is appointed.

Question 6

What is ancillary jurisdiction?

Answer 6

Jurisdiction over real property located in another jurisdiction, exercised in order to protect local creditors and to ensure adherence to the jurisdiction’s recording system.

Question 7

When can the administrator start to give away the property?

Answer 7

After the court issues its letters testamentary or letters of administration.

Question 8

When can a will be offered for probate?

Answer 8

Any time after the decedent’s death, though good cause must be shown if it is more than 21 years later, or else letters testamentary or letters of administration will not be granted.

Question 9

Who can serve as a personal representative?

Answer 9

A person named in the will (executor) or administered by the court (administrator).

The following people may not:

• Anybody under the age of 18, incapable of serving, or subject to removal for cause;
• A corporation not authorized to act as a fiduciary;
• A person, other than an executor designated by name or description in the will, found by the register to be unfit to administer the estate; and
• A person charged with voluntary manslaughter or homicide–with the exception of homicide by vehicle–in the decedent’s death, unless the person is found not guilty or the charge is withdrawn or dismissed;
• A nonresident of Pennsylvania (at the court’s discretion).

Question 10

Who will have priority when applying for appointment?

Answer 10

1. Residuary beneficiary named in will;
2. Surviving spouse;
3. Decedent’s next of kin as determined by the applicable intestacy law;
4. Principal creditors; and
5. Other fit persons.

Tiebreaker: The person who will best administer the estate with preference given to the sizes of the shares to be inherited.

Question 11

What are the principal duties of a personal representative?

Answer 11

1. Inventory and appraise all real and perosnal property within the state.
2. Act as a fiduciary, owing the highest duty of care and loyalty to the estate

Question 12

What fiduciary duty does the personal representative have?

Answer 12

The highest duty of loyalty and care, meaning that he cannot profit from the trust instilled in him. This duty can only be discharged by the court.

Question 13

When will the personal representative be released from potential liability?

Answer 13

When the court approves of their actions in completing the adminsitration and distributing the assets promptly, including by paying creditors and tax collectors.

Question 14

What happens if the assets are insufficient to satisfy all of the claims presented against the estate?

Answer 14

Then the personal representative pays the debts in the following order:

1. Costs of administration
2. Family exemption
3. Funeral expenses and other reasonable expenses related to the decedent’s last illness;
4. Cost of a grave maker
5. Decedent’s owed rent up to a period of six months prior to his death
6. Claims of the Commonwealth and its political subdivisions
7. All other claims (in no priority)

Question 15

On what basis will a challenge to the validity of a will that has been accepted to probate be succcessful?

Answer 15

If the challenger stands to benefit financially AND proves the will’s invalidity on recognized grounds including undue influence.

Question 16

When must a will contest be made?

Answer 16

Within a one year after probate is opened, or else it will be barred.

Question 17

Who has standing to raise a will contest?

Answer 17

Only directly interested parties who stand to benefit financially–creditors of beneficiaries, spouses of beneficiaries under prior wills, and omitted heirs cannot contest.

Question 18

What is a no-contest or “in terrorem” clause?

Answer 18

An express clause within a will designed to deter a beneficiary from suing over his share by causing him to lose his share entirely if he does so.

They are unenforceable against claimants as long as the claimant had probable cause.

Question 19

When will a testator lack the requisite mental capacity to “possess a sound mind?”

Answer 19

If he, at the time of execution, did not have the ability to know the:

1. nature of the act;
2. nature and character of his property;
3. natural objects of his bounty; and
4. plan of the attempted disposition.

Question 20

What is an insane delusion and what impact does it have on a will?

Answer 20

It is a belief for which there is no factual or reasonable basis, but to which the testator adheres despite all reason and evidence to the contrary. It may invalidate the entire will or only a portion of it.

TEST:

1. Could a rational person not have reached the same conclusion in the testator’s situation?
2. Was the delusion the sole cause of the testamentary disposition?

Question 21

What is undue influence?

Answer 21

Mental or physical coercion exerted by a third party on the testator with the intent to influence the testator such that he loses control of his own judgment.

Question 22

What must somebody show and by what standard to prove undue influence?

Answer 22

By clear and convincing evidence, they must show that:

1. the testator was of weakened intellect (not incapacity) at the time the will was executed;
2. a beneficiary of the will had a confidential relationship with the testator; AND
3. the beneficiary received a substantial benefit under the will.

Question 23

What happens when one party has met the burden of proving that there was undue influence?

Answer 23

The other party assumes the burden of proving that there was no undue influence.

Question 24

What are the ramifications of undue influence?

Answer 24

The will may be invalidated in whole or in part, as long as the overall testamentary scheme is not altered thereby.

Question 25

When will a presumption of undue influence arise?

Answer 25

When the principal beneficiary under a will

1. stands in a confidential relationship to the testator (attorney or physician, e.g.),
2. participated in executing the will, AND
3. received a gift that, to the beneficiary, is unnatural.

OR

Same as above, but when the will was executed under suspicious circumstances, even lacking a confidential relationship.

Question 26

What effect does a current legal determination of diminished capacity have on a previously executed will?

Answer 26

None.

Question 27

Is power of attorney alone enough to constitute a confidential relationship?

Answer 27

No, as long as the power was granted to assist the decedent with his business affairs.

Question 28

Is a marital relationship a confidential relationship?

Answer 28

Not by law, but can be under the circumstances.

Question 29

What happens if a beneficiary is found to have exerted undue influence?

Answer 29

They are treated as if they predeceased the decedent.

Question 30

What is the prima facie case for undue influence?

Answer 30

1. Susceptibility
2. Motive or predisposition
3. Opportunity
4. Causation

Question 31

What are the elements of fraud?

Answer 31

1. A misrepresentation must have been made
2. by the beneficiary
3. at the time the will was executed
4. with the intent to deceive the testator and
5. with the purpose of influencing the testamentary disposition.

Question 32

What is fraud in the inducement?

Answer 32

A knowingly false representation that causes the testator to make a different will than he would have otherwise made.

Requires actual reliance: testator would not have made the gift had he known the true facts.

Question 33

What is fraud in the execution?

Answer 33

Fraud as to the very nature of the instrument or its contents.

Question 34

What is a constructive trust?

Answer 34

Something that can be imposed upon a defendant to rectify any alleged fraud or undue influence perpetrated upon the testator. Can be imposed when the court things unjust enrichment would result if the defendant retained the property.

A way of taking property away from a bad-doer.

Question 35

What obligation does the fraudster have with a constructive trust?

Answer 35

They must hold the property for its proper owner or beneficiary OR immediately re-convey it.