ESTATES AND TRUSTS
Probate and non-probate property
Probate property – property that passes under the decedents will of by intestacy
Non-probate property – property passing under an instrument other than a will
Joint tenancy property, both real and personal. The survivor has the whole property relieved of the decedent’s participation. All survivor needs to do is present a death certificate
Life insurance – company will pay on receipt of a death certificate.
Contracts with payable on death provisions. Again, file a certificate. Brokerage accounts etc.
Interests in trust. Trusts are distributed directly to beneficiaries.
A summary of probate procedure
Probate performs three functions: provides evidnce of transfer of title to the new owners by a probated will or intestate succession; protects creditors by requiring payments of debt; distributes the decedent’s property to those intended after the creditors are paid.
It is first probated where the decedent was living prior to death (primary or domiciliary jurisdiction). If there is property located in another jurisdiction ancillary administration is required.
Common form probate – no notice was issued
Solemn form probate – notice was given by citation
Uniform Probate Code (1969)
Informal and formal probate
Any interested party can demand formal probate
This is a judicial determination after notice to interested parties
No proceedings can be initiated more than three years after the death
If no will is probated within three years after death the presumption of intestacy is conclusive
Time for contest – the time for contesting probate of a will is dependant upon a statute in the particular jurisdiction.
Barring creditors of the decedent – Creditors must file within a certain time, or their claims are barred. For short term bars actual notice must be given to reasonably ascertainable creditors.
Supervising the representatives actions
May be supervised or unsupervised
Closing the estate
Want the estate closed as soon as possible. However, creditors must be paid, titles must be cleared, taxes must be paid.
Is probate necessary?
Fees for probate are high. Probate can be avoided by putting all the property in a joint tenancy. Probate can be avoided if the amount of property is small. There are other exceptions also.
Intestate – without a valid will
Something like fifty percent of people did intestate.
There is such a thing as partial intestacy
Uniform probate Code (1990)
Stuff goes to heirs
Changes if there are children from outside this relationship
Share of surviving spouse
Most people want more to go to their spouse.
It changes from state to state, but sometimes a surviving spouse must share with descendants, ancestors and collaterals.
Domestic Partners and Intestate Succession
59-2219, 2220, 3301-3306,3201-3206, 617
Day 1 Notes
Probate process – process by which the court, with regard to any assets in decedents estate, says they should be disposed of by a particular valid will,
With a particular asset – the court may decide that the decedent was intestate (disposed of by statute)
Heirs and devises claims are evaluated and determined
End objective is distributing the stuff in the way that decedent would want
Fixing claims against the estate – creditors and stuff. If they are not paid, the claim may have been barred (time).
Documentation of transferred title
A process by which decedents assets are officially and tangibly distributed to those who are supposed to get the assets
Takes care of claims of creditors (paid or barred)
Probate property – assets disposed of by testators will of intestate succession
Non-probate property – property that passes under some inter vivos transfer or arrangement (not by will or intestate succession)
Non-probate property – property in joint tenancy, life insurance, pay on death arrangements, interests in trust, life estate remainder arrangements
These arrangements are sometimes called will substitutes (willsubs) book refers to them as non-probate transfer
gers four months for the creditor to file its claim.
Contesting a will
Attempt to prevent a particular will from being admitted to probate. Attempt is based on the fact or allegation that will was not properly executed or that the will was superceded by a later will, or that it was revoked by the testator before death…
Who can contest?
Someone with a direct pecuniary interest in the estate. 59-2225 says contesting a will must be completed during the probate process for this will.
Is probate necessary?
Probate does cost. There is a delay. There could be embarrassment because all the hearings are public.
Ways to avoid probate.
Put all there assets in the form of a non-probate property. Small bank accounts and other items may escape probate. There are stream lined transfer of ownership processes for small estates.
After the spouses share is set aside children and issue of deceased children take the remainder of the property to the exclusion of all.
Representation-descendents of a child take that childs share.
Three systems for determining this
English per stripesàdivides the share into as many shares as there are living children and children of deceased children if there are issue
Modern per stripesàestate is divided into shares at the generational level nearest to the decedent in which one or more descendents of the decedent are alive and provides for representation of any deceased descendent on that level by his or her descendents.
Per capita at each generationàpasses down per capita in each generation where there are living descendents. The rest drops down to the next generation to be divided among them.