Estates & Trusts Prof. DeLaTorre
Dukeminier, 7th Ed. Spring 2007
1. The Probate Process
a. Probate and Nonprobate Property
i. Probate — property that passes under the decedent’s will or by intestacy.
a. Provides evidence of transfer of title to new owners by a probated will or decree of intestate succession.
b. Protects creditors by requiring payment of debts.
c. Distributes decedent’s property to those intended after creditors are paid.
ii. Nonprobate — property passing under an instrument other than a will.
1. Joint tenancy property, both real and personal — decedent’s interest vanishes at death. The survivor takes the whole, relieved of the decedent’s participation. Survivor must file death certificate to perfect title.
2. Life Insurance — proceeds of a policy on decedent’s life are paid by the insurance company to the beneficiary named in the insurance contract. Insurance company will pay upon receipt of death certificate.
3. Contracts with Payable-on-Death Provisions — usually contract with a bank, employer, investment plan, etc. which allows decedent to list beneficiaries. Assets are received after filing death certificate.
4. Interests in Trusts — the trustee holds the property for the benefit of the named beneficiaries, later distributed according to the terms of the trust.
b. Administration of Probate Estates
i. After decedent’s death, first step is to appoint a personal representative (P.R.), whose duties are to:
1. Inventory and collect the assets of the decedent.
2. Manage the assets during administration.
3. Receive and pay claims of creditors and tax collectors.
4. Clear any titles to cars, real estate, or other assets.
5. Distribute remaining assets to those entitled.
c. Probate Procedure
. No entitlement to informal probate; court will consider size and solvency of estate and the cost of administration of a full probate process.
ii. If probating a will, the original will must be attached to the petition. A will that appears to meet the requirements of execution is probated by the registrar without further proof. UPC §3-303.
iii. Within 30 days of appointment, the P.R. must mail notice to every interested person, including heirs apparently disinherited by a will. UPC § 3-705.
b. Formal (aka “solemn form” or notice probate) — after receiving notice pursuant to informal probate, any interested party can demand formal probate, and such proceedings become final if not appealed.