Professor MacRae
Penn State
Fall 2010
I. Transfer of the Decedent’s Estate
a. Probate and Nonprobate Property
i. Probate property (30)
1. property that passes under the decedent’s will or by intestacy
ii. non-probate property (30)
1. is property passing under an instrument other than a will
2. non-probate property examples
a. Joint tenancy property, both real and personal
i. No interest passes to the survivor at the decedent’s death. In order for the survivor to perfect title to real estate, all the survivor need do is file a death certificate of the decedent.
b. Life insurance
i. Life insurance proceeds of a policy on the decedent’s life are pain by the insurance company to the beneficiary named in the insurance contract. The company will pay upon receipt of a death cert of the insured.
c. Contracts with payable on death provisions
i. To collect property held under a payable on death contract, all the beneficiary need do is file a death cert. With the custodian holding the property.
d. Interests in trust
i. When prop is transferred in trust, the trustee holds the property for the benefit of the named beneficiaries, who may have life estates or remainders or other types of interests.
b. Administration of Probate Estates
i. History and Terminology
1. personal representative (31)
a. oversees winding up of decedents personal affairs.
b. Principle duties
i. To inventory and collect the assets of the decedent
ii. To manage the assets during administration
iii. To receive and pay the claims of creditors and tax collectors
iv. To clear any titles to cars. Real estate, or other assets
v. To distribute the remaining assets to those entitled
c. Executor (31)
i. If the decedent dies testate and in the will names the person who is to execute the will and administer the probate estate, such personal representative is called an executor.
d. Administrator (31)
i. When the person in charge of administering the estate is not named in the will they are called an administrator
e. Probate court (31)
i. Personal representatives are appointed by, under the control of, and accountable to a court, called the probate court
f. If a person dies intestate or leaves a will that fails to name an executor who qualifies, the administrator is selected for a statutory list of persons usually in the following order:
i. Spouse
ii. Children
iii. Parents
iv. Siblings
v. Creditors
2. Probate courts (32)
a. One court in each county has jurisdiction over administration of decedent’s estates
3. some terms
a. a person dying testate devises real property to devisees and bequeaths personal property to legatees
i. devise refers to land and bequest to personal property
b. Real propertydescends to heirs; personal property is distributed to next of kin
i. Now heirs usually means people designated by the statute to take a decedent’s intestate property both real and personal and next of kin means the same thing.
4. functions of probate
a. It provides evidence of transfer of title to the new owners by a probated will or decree of intestate succession
b. It protects creditors by requiring payment of debts
c. It distributes the decedent’s property to those intended after the creditors are paid
5. Probate Procedure
a. (1)The will should first be probated, or letters of administration should first be sought in the jurisdiction where the decedent was domiciled at the time of death.
b. The person asking for letters can chose informal or formal probate
i. Under informal probatewithout giving notice to anyone, the representative petitions for appointment; the petition contains pertinent information about the decedent and the names and addresses of the spouse, the children or other heirs, and, if a will is involved, the devisees.
1. If the petition is for probate of a will, the original will must accompany the petition; the executor swears that, to the best of his or her knowledge, the will was validly executed; proof by the witnesses is not required.
2. A will that appears to have the required signatures and that contains an attestation clause showing that requirement of execution have been met is probated by the registrar without further proof
3. Within 30 days the person rep has to mail every interested party, included heirs apparently disinherited by will.
ii. Under formal probate the UPC is a judicial determination after notice to interest parties.
1. Any interest party can demand formal probate.
2. Formal probate may be use to probate a will, to block an informal proceeding, or to secure a declaratory judgment of intestacy
3. These proceedings become final if no appealed
c. Time for contest
i. Conestation of a will depends upon the jurisdiction
d. Barring creditors of the decedent
i. Claims not filed within a specified time period are barred. The statutes that bar them are called nonclaim statutes.
1. the two forms of non claim statutes are
a. they bar claims not filed within a relatively short period after probate proceedings are begun, generally to six month. 4 mths under the UPC
b. whether or not probate proceedings are commenced, they are claims not filed within a longer period after the decedent’s death, general 1-5 yrs. One year under the UPC
ii. Under short term statutes creditors usually are notified of the requirement to file claims only by publication in a newspaper after probate proceedings are opened.
1. the SC held that the Due Process Clause required known or reasonably ascertainable creditors receive actual notice before they are barred by a short term statute running from the commencement of probate proceedings.
6. Supervising the Representatives actions
a. In many states they are supervised by the court.
b. In some states the personal representative handles all affairs informally without court order, provided the interested parties are adults and approve the fiduciary’s account and release the fiduciary from liability. If minors are involved judicial supervision is necessary.
c. If an interest party demands supervised administration the PC supervises. If no party demands it it is independent of the court.
d. If an interested party is dissatisfied with unsupervised representation then he can obtain supervised through the court.
7. closing the estate
i. creditors must be paid
ii. titles must be cleared
iii. taxes must be paid and tax returns audited and accepted by the appropriate tax authorities
iv. real estate or a sole proprietorship may have to be sold.
b. judicial approval of the personal representative’s action is required to relieve the representative from liability, unless some statute of limitations runs upon a cause of action against the representative. The representative is not discharged from fiduciary duties until the court grants discharge
8. how to avoid probate
a. the property owner can avoid probate provided he transfers all his property into a joint tenancy or a revocable or irrevocable trust or, in may states, executes a contract providing for distribution of contract assets to named beneficiaries on the owners death.
9. Universal Succession (40)
a. The heirs or the residuary devisees succeed to the title of all of the decedent’s property; there is no personal representative appointed by the court
c. Duties to Intended Beneficiaries (49)
i. Simpson v. Clivas (139 N.H. 1, 650 A.2d 318)
1. Facts: Attorney drafted and ambiguous will leaving questions as whether the deceased left his “homestead” to his second wife or to his son. The word homestead caused problems as to whether it referred simply to the house or also to the 100 acres and business buildings surrounding the house.
2. Procedural History: Plaintiff son sued attorney for negligence and breach of contract. The superior court directed a verdict for the D based on the P’s failure to introduce an evidence on breach of duty. The TC also granted Summary judgment on collateral estoppel grounds based on finding of the Strafford county Probate Court and dismissed the action, ruling that under N law an attorney who drafts a will owes no duty to intended beneficiaries. Reversed and remanded on appeal.
3. Issues on appeal: 1. whether the trial court erred in ruling that under New Hampshire law a drafting attorney owes no duty to an intended beneficiary; 2. whether the trial court erred in ruling tha the findings of the probate court on testator intent collaterally estopped the plaintiff from bringing a malpractice action.
4. rationale:
a. Negligence action
i. Court said in order to recover for negligence the plaintiff must show that there exists a duty whose breach by the D causes the injury for which the P
i. In Hawaii reciprocal beneficiaries are given many but not all of the same benefits of surviving spouses including intestacy and elective share rights that match those of legal spouses.
ii. Civil unions in Vermont are open only to same sex couples but give many of the same rights as marriage gives legal spouses
iii. Ca’s domestic partnership statute gives full rights to a spousal intestate or elective share and applies to same sex partners of any age and opposite sex couples in which at least one of the partners is 62 or older.
d. Simultaneous death (intestacy) (67)
i. A person succeeds to the property of a decedent only if the person survives the decedent for an instant of time
ii. Uniform Simultaneous Death Act
1. the original said that if there is no sufficient evidence of the order of deaths, the beneficiary is deemed to have predeceased the donor. Thus neither inherits form the other. Further if two joint tenants, A and B die simultaneously, one half of the property is distributed as if A survived and one half is distributed as if B survived. The same rule is applied to property held in tenancy by the entirety or community property.
2. when the insured and the beneficiary die simultaneously, the proceeds are distributed as if the insured survived the beneficiary.
iii. Janus v. Tarasewicz (68)
1. husband and wife ingested Tylenol laced with cyanide. Husband was pronounced dead shortly after and wife was placed on life support for two days. Husbands mother wanted life insurance policy worth 100,000 which named wife as beneficiary. The trial court gave the money to wife’s father. Appeals court affirmed.
2. survivorship is a fact which must be proven by a preponderance of the evidence by the party whose claim depends on survivorship
3. the fathers people are arguing they died exactly at the same time because his mother would get the insurance policy money and then any property which the husband and wife owned would turn into a tenancy in common where his half would go to his half and hers to hers. This is the same as what happens in the uniform simultaneous death act.
iv. UPC 2-104 and 2-702 provide that a heir or devisee or life insurance beneficiary who fails to survive by 120 hours (5 days) is deemed to have predeceased the decedent.
1. The Uniform Simultaneous Death Act was amended so that a claimant must establish survivorship by 120 hours by clear and convincing evidence, not merely by some sufficient evidence as provided in the original UPC and USDA
2. surviving spouse has to outlive by 5 dies or else they will be treated as though they predeceased the dead spouse.
3. this tries to avoid the problem of trying to determine who died first andwhen.
e. Shares of Descendants (intestacy) (73)
i. In all jurisdictions, after the spouse’s share is set aside, children and issue of deceased children take the remainder of the property to the exclusion of everyone else.
ii. When one of several children has died before the decedent leaving descendants, all states provide that the child’s descendants shall represent the dead child and divide the child’s share among themselves.
iii. English per stirpes
1. a.k.a. by the stocks. This system divides the property into as many share as there are living children of the designated persona and deceased children who have descendants living.
a. Followed in 14 states
iv. Modern per stirpes
1. a.k.a. per capita with representation
a. one looks first to see whether any children survived the decedent. If so, the distribution is identical to that under English per stirpes. However, where o kids survives the decedent, as in the above example, then the estate is divided equally at the first generation in which there are living takers, which is usually the generation of the decedents grandchildren.
b. Basically the decedent’s estate is divided into shares at the generational level nearest to the decedent in which one or more descendants of the decedent are alive and provides for representation of any deceased descendant on that level by his or her descendants.
v. Per capita at each generation (the one we’re responsible for the final)
1. 1990 upc
a. 2-106(b) the initial division of shares is made at the level where one or more descendants are alive, but eh shares of deceased persons on that level are treated as one pot and are dropped down and divided equally among the representatives on the next generational level.
