I. PROBATE & INTESTATE SUCCESSION
PROBATE
Generally. Process that determines (1) that a will is the valid will of the decedent, or (2) that the decedent died without a will. Probate also examines claims against the estate (especially by creditors) and grants to devisees.
Three Functions of probate (p.34)(1) official documentation of transfer of title by evidence (Stock of land); (2) officially distributes decedent’s property to those who are entitled to receive it after creditors are paid; and (3) satisfies creditors in one of two ways (assures payment of debts or bars creditors’ claims after certain time has passed).
Probate property. Property disposed of either by the testator’s will or intestate succession.
Nonprobate property/“will substitutes.” (p.30)Property disposed of by some inter vivos transaction (pre-arranged) done by the deceased before she dies
i. Examples. Joint tenancy property (take whole if another joint tenant dies, life insurance (k), contracts with payable-on-death (POD) provisions (pension), interests in trust, life estate remainder arrangements.
Probate process. Initiated by filing a petition for probate (will) or petition for administration (no will) in a probate court.
i. Personal representative. An executor (will) or administrator (intestate) appointed by the court and authorized to act by letters testamentary (will) or letters of administration (no will).
ü Following a hearing, (depending on complexity), every interested party is supposed to receive the notice (one with direct pecuniary interest in the estate: heirs, devisee, creditors)
ii. Duties of personal representative (p.31)(1) Inventory and collect assets of decedent (at least on paper, know what assets are); (2) manage and maintain the assets during administration; (3) receive and pay the claims of creditors and tax collectors; (4) clear up all titles (car, real estate, stock or bonds) and (5) distribute the remaining assets to those entitled.
iii. Terminology
ü Common law
Will
No Will
Decedent
Testator
Intestate
Succession
Devise (real)
Bequest (personal)
Legacy ($)
Descent or inheritance
Distribution or inheritance
Distribution or inheritance
Recipient
Devisee (real)
Legatee (personal)
Legatee ($)
Heir
Distribute
Distribute
ü UPC
Will
No Will
Decedent
Testator
Intestate
Succession
Devise
Intestate Succession
Recipient
Devisee
Heir
iv. Formal/traditional process. Initiated by filing of a petition
be filed within 6 months)
viii. Is probate necessary?
ü Expenses of the probate: attorney fees, delay, sometimes reluctant to expose family lines to public)
ü Ways to avoid probate process: put all assets in nonprobate type of interest (cf. car, stock, bond: need official documentation for transfer of title; tax complexities – requires probate process)
ü Some J: provides statutes not requiring probate (small bank account)
INTESTATE SUCCESSION (p.59)
Generally. Statutory method by which property is distributed in the absence or in place of a will. (c.f. Cases might provide interpretations of the statutes)
i. Arises in three instances:
1. Decedent dies without a will.
2. Decedent dies partially intestate (not all assets included in will).
3. Decedent’s will or trust calls for the application of the intestate succession statute.
ii. Policy goal. Statutes seek to approximate what the average person would want done with his/her assets had he/she thought to make his/her own will.
iii. UPC (Uniform Probate Code): proposed statutes, not in effect unless adopted by a state (half adopted; KS adopted partially)
Spouse’s share. All states provide for a surviving spouse in some way. Typically, the spouse receives all of the assets if there are no surviving issue; if there are surviving issue, the spouse receives only a share.
UPC. Statute provides for spouse’s share depending upon surviving descendants and/or parents. UPC § 2-102 (p. 61)
