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38 Cards in this Set

  • Front
  • Back
can an estate sue or be sued?
no, it is not a legal entity (except for tax purposes);
a suit would be brought by or against PR on behalf of estate
generally, do causes of action survive the decedent's death?
yes
Is the PR required to obtain court approval before bringing or defending an action on behalf of the estate?
no, PC 9610, 9820
but it may be advisable to do so and approval must be obtained for amounts spent on litigation
What is a petition for instructions
PC 9611
asking the court what action to take before the PR takes it
Can an interested person petition the court to direct PR to bring litigation, defend litigation or not act?
Yes, PC 9613
Can the PR pay litigation fees without court approval
No, PC 10501
Is evidence related to a decedent's then-state-of-mind admissisable?
yes, to prove state of mind when it is itself an issue or to prove certain acts in conformity with that state of mind.
is evidence of a decedent's statement to show that he has or hasn't revoked a will admissable under hearsay?
yes
Can a PR settle a claim or action without court authorization?
Yes, under PC 9830. But can also request advance approval.
Can the PR's attorney be awarded compensation for litigation fees?
Yes, as extraordinary fees under 10811
what is the primary exception to the general rule that a cause of action survives death of decedent?
personal action for dissolution of marriage or that type
Are damages allowed for decedent's pain and suffering?
generally no
Who can bring a wrongful death action?
persons authorized under CCP, or PR on their behalf
who doesn't have standing for a wrongful death action?
decedent's killer or abuser
what is the statute of limitations for claims against the decedent
1 year
CCP 366

unless covered by insurance -- then as regularly applicable
PC 551
what is the SOL for claims that decedent made an oral or written promise for bequest/distribution?
one year from date of death
what sections govern creditors claims
9000-9399
Can a PR be substituted for decedent if decedent was defendant?
yes, but claim must be filed first.
What is the deadline for a creditor to file a rejected claim?
If claim is due at time of notice, within 3 months from rejection;
if claims is not due, then three months from when it becomes due.
PC 9353
How may a contract to prove a will be established
PC 21700
Provisions of a will or other instrument stating the material provisions of the contract;
Express reference to a contract in a will or other instrument if there is extrinsic evidence proving the contract terms;
The decedent's signed writing evidencing the contract; or
Clear and convincing evidence of an agreement or a promise between the decedent and another person for the claimant's benefit, or a promise by the decedent to another person for the claimant's benefit that is enforceable in equity.
If a PR breached a duty but acted in good faith, may the court excuse the breach?
Yes PC 9601
Is a PR liable for breaches by co-representatives?
PC 9631
No, unless actively participates, improperly delegates, is aware, or negligently allows.
May the PR self-deal?
No,
transactions with estate require advantage to estate, consent of all beneficiaries and approval of court.
Does the PR have a duty to file tax returns for the estate?
yes, federal and decedent.
What must the PR do when the estate is in a position to be closed?
PC 10951
file a final account and
petition for final distribution
If the estate is not closed within 1 year (or 18 months if estate tax return is required), what must the PR do?
PC 12200
file a status report.
what may the court do if there is unreasonable delay in closing the estate?
reduce compensation of PR and/or attorney
When will a court order an account?
At any time on own motion, or on motion of interested person.
Court must order an account if it has been 1 year since issuance of letters or last account.
what is a way to avoid doing an accounting?
PC 10954
written waiver from each beneficiary or
written confirmation of satisfaction
what is the punishment for a PR who doesn't obey a court order to account?
may be removed from office
What is effect of breach of duty by PR?
PC 9600
The personal representative is chargeable (surcharge) for failure to use ordinary care and diligence in managing and controlling the decedent's estate and with losses resulting from his or her default or neglect, including negligent failure to collect estate assets
What are compensatory damages for PR breach of duty?
PC 9601
Any loss or depreciation of the decedent's estate from the breach, plus interest;
Any profit made by the representative through the breach, plus interest;
The loss of any profit that would have accrued to the decedent's estate because of the breach.
plus simple interest
Are punitive damages available?
yes, typically 2x
How may a PR be removed?
Any interested person may file 8500 petition

PC 8502
wasting assets
incompetent
neglect
How are fees incurred by PR handled?
PC 10811
PR successfully defending is entitled to extraordinary fees.
If challenge was in bad faith, fees can be recovered from challenger.
if PR loses, personally liable for fees.
as a general rule, is a contestant who successfully attacks a PR account entitled to attorney's fees?
no, but exceptions:
if defense in bad faith oR
creation of a common fund (to avoid free ride problem)
Can an interested party petition the court to increase the bond?
yes
is an order surcharging the fiduciary binding on the surety?
yes, the surety and the fiduciary are jointly and severally liable.