Professor De La Torre Fall 2006
I. Introduction (The Probate Process)
a. Probate Process
i. Probate process is a court determination that transfers property
1. Under the decedent’s will if valid OR
2. Intestate Succession (person died w/o a will)
ii. 3 functions:
1. Provides evidence of transfer of title to the new owners
2. Protects creditors with:
a. It assures payment of debt
b. Unless creditor fails to bring claim in a specific time, then claim is barred.
3. Distributes the decedent’ property to those intended after the creditors have been paid.
i. Probate property – property disposed of by the decedent’s will or intestate succession.
ii. Non-probate property – property disposed of by some inter vivos transaction (life insurance, joint tenancy property, contracts with payable on death provisions, interests in trust)
iii. Testator – the decedent who dies with a will
iv. Intestate – the decedent who dies without a will
v. Devise – the succession process under a will
vi. Intestate Succession – the succession process w/o a will
vii. Devisee – recipient of the property under a will
viii. Heir – the recipient of the property w/o a will
c. Initiation of Probate Process
letters of testament
letters of administration
initiated by interested party:
petition for probate
petition for administration
i. File a petition for probate (will) or administration (no will)
ii. Appoint a personal representative. Executor (will) or administrator (no will).
iii. Authorization is given in the form of letters of testament (will) or letters of administration (no will)
iv. Notice requirement – pursuant to a hearing where parties (potential creditors, devises and heirs) can be heard.
y the debt. (KS = 4 mos)
f. Contesting a Will
i. Generally. A will contest is an attempt to prevent a will from being admitted to probate on the basis that the will was:
1. Not properly executed
3. Superceded by another will
ii. Who can contest? Anyone one with a direct, monetary interest in the estate. (creditor, devisee, heir)
iii. When? Must be done during the administration process. Claim is barred after the final decree is issued.
iv. Competing will can be admitted after the initial will.
a. Intestacy – how property is divided when decedent dies w/o a will.
i. Local statutes govern.
b. 3 ways intestacy happens:
i. Decedent dies without a will.
Partially intestate death. Will doesn’t dispose of all of decedent’s property.