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304 Cards in this Set

  • Front
  • Back
What is the deadline for the custodian of a will to lodge the will with the clerk of court and mail a copy to the executor?
30 days from date of death
When does notice to DHCS need to be sent?
Within 90 days of date of death when decedent is medi-cal beneficiary or surviving spouse of medi-cal beneficiary (similar provision for prisons when prisoner beneficiary is involved)
Will a divorce automatically sever a joint tenancy between a married couple?
Yes (unless clear and convincing evidence of intent not to)
Other than recording an "affidavit of joint tenant," what is another way to clear joint tenancy title to real property?
File a petition to determine fact of death under Probate Code 210(b)
Do creditors of a deceased joint tenant have any rights in the joint tenancy property?
No, liens expire on the death of the joint tenant. Creditors only have rights if there was an execution sale or judgment lien predating creation of joint tenancy. unless it was created for fraud.
Can a creditor force a severance of a joint tenancy?
yes
With respect to community property, would the nondebtor spouse's half be subject to creditor claims against debtor spouse?
Yes, the entire community property would be subject to claim.
Is an estate liable for mortgage debt?
For purchase money mortgage, only liable as to the security (no deficiency judgment)
If not purchase money, there can be estate liability for a deficiency judgment.
No deficiency judgment if there is a foreclosure under power of sale in the deed of trust (requires judicial foreclosure)
What is a joint account?
an account payable on request to one or more of two or more parties, whether or not mention is made of any right of survivorship (PC 5130)
Who does a joint account belong to during the life of the parties?
To the two or more parties in proportion to their net contribution to the account absent any c&c evidence of contrary intent.
Who does a joint account belong to after the death of one party?
to the surviving party/parties (not to the estate of decedent - absent c&c evidence of different intent)
Are life insurance proceeds exempt from creditor claims?
Yes, to the extent reasonably necessary for support of debtor and his/her spouse and dependents.
What could a trustee consider doing if there is a concern about creditor claims?
Use the probate court's trust claims procedure (only allowed if no formal probate has occured and trust was revocable)
What are the three available procedures for transfers under CA small estate statutes?
Collection of personal property by affidavit or declaration;
Succession to real property less than $20K (regardless of estate value) - affidavit
Succession to real property less than $20K (with estate value under $100K) - summary court proceeding
For purposes of small estate affidavit transfers, who is the "decedent's successor in interest?"
1. the person named in the will OR
2. the person who would take by intestacy
When is a spousal property petition appropriate?
When married decedent dies with over $100,000 in assets outside a trust (if under $100K, use affidavit of small estate).

$100K limit includes gross aggregate value of property, including community property
How long after decedent's death can petition to determine real property procedure (small estate) be brought?
41 days for up to $100K gross estate
6 months for up to $20K real property
Is a surviving domestic partner treated the same as a surviving spouse?
Yes, if they are registered and partnership has not been terminated before death.
What is required for property to be treated as community property but to pass without probate at death of first spouse?
title specifically as community property with right of survivorship (or hold in trust)
If H&W hold property purchased from community funds as joint tenants, is the presumption joint tenancy or community property?
presumption follows the joint tenancy deed.
Must a transmutation be in writing to be effective?
Yes
What section of the probate code governs allocation of debts?
11444
Can a spouse transfer or gift community property without the consent of the other spouse?
only to the extent of 1/2 of the CP
If a decedent transfers property by will or trust to a former spouse or domestic partner, will that transfer be valid?
No, under PC 6122, 5600 (unless irrevocable, separation only, or intention to still transfer)
Must a transmutation be in writing to be effective?
Yes
What section of the probate code governs allocation of debts?
11444
Can a spouse transfer or gift community property without the consent of the other spouse?
only to the extent of 1/2 of the CP
If a decedent transfers property by will or trust to a former spouse or domestic partner, will that transfer be valid?
No, under PC 6122, 5600 (unless irrevocable, separation only, or intention to still transfer)
How much money can surviving spouse immediately collect in unpaid earnings of decedent spouse?
$5000 + cost of living increase
what is the alternative to a spousal property petition under Section 13500?
PC 13650 allows a petition to have the court clear title or confirm which property belongs to surviving spouse/domestic partner.
Why might a surviving spouse NOT choose to do a spousal property petition?
in order to take advantage of the probate process to close off creditors claims
When can estates be "set-aside" and to who?
Estates smaller than $20K (after encumbrances) may be set aside to surviving spouse and minor children. rarely used
What is required for a probate court to have subject matter jurisdiction?
proper publication of notice of a petition for administration of a decedent's estate and proof of death
Where is probate venue proper?
In county where was domiciled when he died (or in county where property was located for out-of-state resident)
who can file a petition for probate or petition for appointment of personal representative?
the named personal representative in the will or any spouse, child, creditor or beneficiary. PC 8000
who is "administrator with will annexed"
the person acting as executor but who is not named as executor in the wil.
who is the executor
the person named in the will to administer the estate
who is an administrator?
the person entitled to act as representative for an intestate estate.
what is the biggest advantage of the IAEA (independent administration of estates act)?
ability to distribute up to 50% of value of estate without an account with court approval.
How is separate property dealt with for simultaneous death?
each spouse is presumed to have predeceased the other
Can language in a will or trust supersede probate code simultaneous death provisions?
yes
Absent a specific reference, how long does a survivor need to survive to be considered to have survived?
120 hours/5 days by clear and convincing evidence (otherwise they are considered to have predeceased)
How is joint tenancy property divided when it can't be determined that one joint tenant survived the other?
PC 223 -- each joint tenant is deemed to have survived the other as to 1/2 the property
How are life insurance proceeds distributed when survivorship of beneficiary can't be determined?
distributed as if beneficiary predeceased decedent (goes to contingent beneficiary)
what does PC 21110, the antilapse statute do?
absent expression of contrary intent, if beneficiary predeceases, proceeds will go to beneficiary's issue.
what is the purpose of the probate bond?
to ensure that the personal rep. carries out his duties; surety will reimburse if rep commits breach of trust
If a will requires a bond, can the beneficiaries agree to waive it?
No. PC 8481(a)(2)
what is an alternative to a bond when cost will be prohibitive?
putting some of the assets in a "blocked account"
How is the amount of bond for personal representative set by court?
At court's discretion - but no more than the sum of value of (1) personal property; (2) value of decedent's income; and (3) if under IAEA, real property.
How much higher should bond be for individual sureties?
Twice the normal level as set forth in PC 8482
Is the surety's liability limited to the amount of the bond? is the personal representative's?
Yes for surety.
No for personal representative
Does the personal representative's resignation cut off his liability on the bond?
no, not until the estate has been delivered to the successor.
When can an action for enforcement of liability on a surety bond be filed?
only after a probate court has issued a final order confirming liability of the personal representative.
what is the personal representative's duty/
marshall the assets according to the terms of the will and dispose of them
what is the level of expertise required by personal representative?
PC 9600 - "ordinary care and diligence" But professional fiduciaries held to higher standard.
Can a personal representative rent out decedent's real property?
yes, under IAEA if lease is for less than one year and at market rent.
Can a decedent's personal effects be given to beneficiaries before probate is complete?
Yes, if PC 9650 conditions are met: no dispute, not necessary to satisfy creditors, inventory completed
What must a personal representative due with respect to transferring title to real property?
provide the county with a notice of death of real property owner.
What are the requirements for a valid international will (PC 6382)
in writing; declaration in front of two witnesses + an authorized actor for California wills; sign or acknowledge in front of witnesses and authorized actor; each sheet of will signed; end dated.
When is an Estate Income Tax Clearance Certificate from the FTB required?
1. Estate had FMV assets over $1M and
2. assets over $250K to be distributed to nonresident beneficiaries
For income tax purposes, who is a resident of the U.S.
someone meeting "green card test"
or "substantial presence" test: 31 days in current year and 183 days during prior 3 years.
Are nonresident alien beneficiaries subject to a withholding tax?
Yes, 30% federal withholding tax on taxable portion of interests and dividends from U.S. sources.
Are non-California residents subject to tax withholding?
Yes, at the rate of 7%.
What is the inventory and appraisal ("inventory")
a public record of all property subject to probate that the decedent owned or had an interest in at the time of death.
May a personal representative remove a probate referee?
Yes, may remove first probate referree without cause.
How are responsibilities for appraising assets divided?
Personal representative handles cash and cash equivalents; probate referee appraises everything else.
What is the probate referree's commission on assets appraised?
.1% (per probate code 8960).
minimum $75 and maximum $10,000 (subject to application to increase)
+ actual expenses.
Are mortgages on real property reported in the probate inventory?
No
When is the deadline for the personal representative to file the inventory and appraisal?
4 months, unless extended by court
(PC 8800)
What is the statute of limitations for claims against a decedent?
1 year - CCP 366.2 (extended to two years if for wrongful injury or death for which decedent was insured)
How much the personal representative notify creditors of the probate?
1. Publish
2. give specific, written notice to known or reasonably ascertainable creditors
When is the deadline for notice to creditors by personal representative?
1. within four months from date of letters of administration OR
2. 30 days from first knowledge of creditor, whichever is later
can the personal representative be held liable for giving notice when he was not required to do so?
No (but the opposite is true)
Is a dispute regarding title to specific property considered a creditor's claim?
No - title disputes should be resolved by petitions under PC 850.

if spousal property dispute, resolve with spousal property petition under PC 13650
Is an alleged promise to distribute from a will or trust a creditor's claim?
no
Is a beneficiary's creditor claim against the decedent a "contest?"
Possibly, beneficiaries should proceed with caution.
What is the deadline for a creditor to file claims (and serve a copy on personal representative)?
Either:
(1) 60 days from date of notification OR
(2) four months from the date letters are issued
whichever is LATER
How are late claims handled?
Personal representative under IAEA can accept claim; without IAEA, creditor or personal representative must petition for such approval on basis that personal representative failed to give notice OR creditor had no knowledge of facts in timely fashion.
May creditors file a probate petition?
Yes (PC 48, 8000); creditor should do so if anniversary of death is approaching and no other interested person has filed.
What is a request for special notice?
Under PC 1250, requires other parties to give the requestor notice of various procedures (e.g. inventories, hearings, etc.)
What must personal representative do with each creditor's claim filed with the court?
1. allow or reject the claim in writing
2. serve a copy of allowance/rejection on creditor and creditor's attorney
3. file a copy of allowance/rejection with the court
Can personal representatives compromise or settle claims?
Yes, under IAEA.
Outside of IAEA, summary determination of controversy or arbitration.
What is the priority for claims
1. Debts of the U.S. or California (but costs of administration, funeral expenses, family allowance can be paid before taxes for which no lien exists)
2. administration expenses
3. obligations secured by mortgage or lien to extent can be paid out of property subject to lien (otherwise, general debt)
4. funeral expenses
5. expenses of last illness
6. family allowance
7. wage claims
8. general debts
How are debts handled in insolvent estates?
1. no priority of debts within same class
2. no debt of any class paid until prior classes paid in full
3. if insufficient property for a given class; each debt of that class paid proportionately.
When do funeral, last-illness expenses, family allowance and claims for wages get paid?
As soon as possible after set-asides for administration and debts owed government.
Absent a specific direction in the will, does a gift subject to a mortgage get transferred with or without the mortgage?
With the mortgage (a general directive to pay debts is not construed to include obligations secured by gifted property)
What is the penalty for paying a debt before being ordered to do so?
Representative risks being refused credit for the payment in the accounting.
When can a creditor treat a claim as rejected?
When no response from personal representative or court within 30 days (PC 9256)
After filing a creditor's complaint, what else must the creditor do to protect the claim?
File a notice of pendency of action in the probate proceeding.
How are separate property assets distributed under CA intestacy laws where there is a surviving spouse and a surviving child?
1/2 to spouse; 1/2 to child
How are separate property assets distributed under CA intestacy laws where there is a surviving spouse and multiple surviving children?
1/3 to spouse; 2/3 split between children.
How are separate property assets distributed under CA intestacy laws where there is a surviving spouse and no children?
1/2 to spouse; 1/2 to decedent's parents
How are separate property assets distributed under CA intestacy laws where there is a surviving spouse and no children or parents?
1/2 to spouse; 1/2 to decedent's siblings or their issue
What is abatement?
When there are inadequate estate assets to satisfy all gifts, debts, expenses, etc.
What is the order of abatement for wills?
1. intestate gifts
2. residuary gifts
3. general gifts to non-relatives
4. general gifts to relatives
5. specific gifts to non-relatives
6. specific gifts to relatives
What is abatement?
when a gift of specific property does not exist at testator's death.
what is the effect of abatement?
generally, gift is extinguished.
What is ademption?
when a gift of specific property does not exist at testator's death
What is the affect of ademption?
No ademption absent proof that testator meant for gift to fail (e.g. "if owned by me at my death)
When specific property is adeemed, what is the beneficiary entitled to?
1. remainder of any specific property left in the estate;
2. if sold by testator, balance of the purchase price still owing at testator's death
3. if destroyed, insurance proceeds unpaid at death.
What is ademption by satisfaction?
a lifetime gift made in satisfaction of a testamentary devise (e.g. an early gift)
What is lapse?
when initial beneficiary predeceases the testator
who do lapsed gifts go to?
1. designated substitute beneficiary;
2. to the beneficiaries' issue (if anti-lapse statute applies)
3. to residuary beneficiaries
4. to heirs at law
What is the anti-lapse statute?
PC 21110
If beneficiary fails to survive testator and beneficiary is kindred of testator or testator's spouse and the will has no contrary language, then gift is distributed to issue of predeceased beneficiary.
what is a demonstrative gift?
a gift that designates the particular fund or asset to be used to make the gift (e.g. I give $5K from my BofA account)
are foster and stepchildren included in the definition of "children" for gift and intestacy purposes?
Yes, IF relationship began during child's minority and continued throughout lifetimes AND foster parent/stepparent would have adopted but for legal barrier.
What is an omitted spouse?
when a will is executed prior to marriage and the spouse is not provided for.
What is an omitted spouse entitled to?
Decedent's 1/2 of the CP +
decedent's share of separate property which spouse would receive under intestacy, with a max of 1/2 of the SP
When will omitted spouse not receive a share under 21610?
When:
1. failure to provide was intentional on the face of the document.
2. decedent provided for spouse outside of the will; OR
3. spouse waived right to assets
What is an omitted child?
when testator fails to provide for a child born or adopted after execution of the will (includes when child can prove ommission due to mistaken belief re death or unaware of birth)
What is an omitted child entitled to?
whatever he would have received under intestate succession.
When will omitted child not receive a share under 21621?
1. failure to provide was intentional on the face of the document.
2. testator had child when will was signed and left substantially all of estate to other parent of omitted child; OR
3. decedent provided for child outside of the will
Can a person who has a key to a safe deposit box open it after death of owner?
Yes, upon proof of decedent's death and proof of identity.
What are the requirements for a valid holographic will?
In testator's handwriting
signed by testator
no witnesses required
no date required
what are the requirements for a valid formal/witnessed will?
in writing
signed by testator (or by another in presence of testator)
two witnesses present at execution
Can a holigraphic codicil modify a witnessed will?
Yes, and vice-versa.
Can a contract to make a will be oral?
Yes, but requires clear and convincing evidence.
who can enforce a contract to make a will
Promisee or third-party beneficiary to contract (e..g deceased spouse's kids)
What are the elements of a cause of action for breach of contract to make (or not revoke) a will?
DJ-Plane
Definiteness
Just and reasonable contract
Performance by Plaintiff
Lapse of performance by promisor
Adequate consideration
No remedy at law
Estopped because of injury to P or enrichment to D
What is a petition to determine heirship?
Similar to a 17200 petition for trusts - but this applies to intestate succession and wills. Determine who has the right to distribution of assets.
Who can a petition to determine heirship be brought by?
Personal representative or anyone claiming to be a beneficiary
(no creditors)
What are some examples of subjects of a petition to determine heirship proceeding?
-determine heirs to intestate property
determine identity of reappearing missing persons
-tracing property acquired from predeceased spouse
-characterizing marital property
What is the priority of assets to satisfy a share of omitted spouse or child's interest?
1. assets outside of will or trust
2. proportionately from beneficiaries of testamentary instruments
3. specific bequest or devise may be exempted and other apportionment adopted to give effect to decedent's intent
When may heirs of a predeceased spouse have a right to property?
when there is no surviving spouse and no issue of the decedent.
For real property, death can't be more than 15 years before decedent
What rights does a reappearing person have to recover his share?
if administration pending, recover from personal rep., less expenses

If after distribution, recover from beneficiaries (5 year statute of limitations)
What is a spousal set-aside procedure?
A short-cut method of transferring property to a surviving spouse (but it does not cut off creditor claims) -- see PC 13650
How are attorney's fees set in a spousal set-aside procedure?
by private agreement
How are unincorporated business interests handled in a spousal set-aside procedure?
Surviving spouse must file a list of creditor and amounts owed.
What is a family allowance?
Probate Code 6540.
Allowed to cover immediate support needs of the family during administration.
Decedent's intentions irrelevant
who is entitled to a family allowance?
surviving spouse
minor children
adult, dependent children
Physically or mentally handicapped children
who may receive a discretionary family allowance?
adult children actually dependent in whole/part

parents actually dependent in whole/part
What is a probate homestead?
the right to family members to live in a family dwelling until inventory and appraisal is filed and for 60 days thereafter. Court discretion based on number of factors including intent of decedent.
Who is entitled to a probate homestead?
surviving spouse
minor children
what is a central issue to consider in fiduciary accountings
Allocation between income (to current beneficiaries) and principal (to remainder beneficiaries)
What is the maximum amount of time a PR may operate the decedent's business without court order?
6 months from the date letters are first issued.
SNTs are set up to provide what to beneficiaries?
supplements to basic necessities
What must the will custodian do upon death of testator?
Within 30 days, lodge it with the clerk of county superior court and mail a copy to the named executor (or if not available, a named beneficiary)
What is ancillary administration?
a secondary probate dealing with property left by decedent in another county or state
Which state has jurisdiction over real property assets - state of domicile or state where real property is located?
state where real property is located.
What does IAEA stand for and where is it referenced in probate code?
Independent Administration of Estates Act
Probate Code 10400 - 10592
What is the difference between full and limited powers under the IAEA.
With limited powers, the personal representative needs court approval for selling or exchanging real property, granting an option or borroing money with loan secured by encumbrance on real property.
Full authority may require higher bond.
what is the standard of care for a personal representative acting either under the IAEA or regular probate code?
Fiduciary standard of care.
Who can petition for IAEA administration?
Any personal representative (unless it is prohibited by the will.
Why might a personal representative seek court supervision even if allowed to forego supervision under IAEA powers?
complex transaction; possible conflict of interest; hostility among beneficiaries, etc.
Even with full authority under IAEA, what actions still require court supervision?
Allowance of representative and attorney's fees; settlement of accounts; distributions and discharge. PC 10501(a)
Where are exceptions to court supervision under IAEA located in the probate code?
PC 10501
IAEA limited authority -- which transactions require court supervision?
Sale or exchange of real property
granting option to purchase real property
borrowing money with a loan secured by encumbrance on real property
For exercising independent powers, which actions require advance notice?
PC 10511-10520

sale or exchange of real property
sale or incorporation of unincorporated business
abandonment of valuable tangible personal property
borrowing or encumbering estate property
How many days advance notice must personal representative give before taking proposed action?
15 days
PC 10586
(unless persons entitled to notice consent)
What are interested persons options for challenging proposed actions?
Objections 10587

Restraining order 10588
What is the effect of the filing of an objection or restraining order on the proposed action?
the personal representative must obtain court approval before taking the proposed action (PC 10589)
Who may revoke the personal representative's IAEA authority?
the court on its own discretion

any interested person may petition the court for removal (by showing good cause)
What is a petition for instructions (and where in probate code?
Allowing the representative to seek authorization and instruction or approval and confirmation of acts in administering or managing the estate.
Applies when no other procedure is provided for by statute. No limit on # of times instructions are requested.
Probate Code 9611.
What are examples of suitable subjects for petition for instructions?
How to vote corporate stock?
Determine whether property is property of the estate?
to authorize compromise of claim against estate
What are examples of improper subjects for a petition for instructions?
Seeking guidance on a question of law
where there is another procedure available
What is the effect if a court makes an order under PC 9611 petition for instructions if another procedure applies?
the order is void
Who can petition for instructions?
only the personal representative.
Not trustees, who must use 17200
Can an interested person petition the court to direct the personal representative to act or not act?
Yes (9613)
How many days notice to "interested persons" are required before a petition for instructions?
15 days
What is the effect of an objection to a petition for instructions?
PC 1043
It becomes a contested matter and is tried in conformity with rules of civil practice (PC 1000)
What rights do decedent's spouse (also registered domestic partner) and minor children have to the family residence in a probate?
Right to possession of residence and contents until the inventory is filed and for 60 days after (PC 6500)
What other set-asides are decedent's spouse/domestic partner and minor children entitled to?
Probate homestead set aside (6520)
set-aside of exempt property, excluding family dwelling (6510)
When there is a surviving spouse/domestic partner and a minor child, can they both get a set-aside?
Yes, both ok; can't be spouse alone or minor children alone or one of multiple minor children alone.
Who is considered a surviving spouse?
must have been married at time of divorce (ok if divorce is pending and not final; not ok if legal separation has been finalized)
What is considered exempt property under PC 6500?
equity in vehicles
household furnishings, appliances, apparel
small amount of home improvement
small amount of jewelry
small amount of property for trade/business
SS deposits
retirement plan benefits
Can the temporary possession period be modified?
Yes, by order on petition from any "interested person"
What is a declaration of homestead?
protects up to $75K for single person; $100k for married couple and $150K for elderly or disabled
What is a probate homestead set-aside?
PC 6520 et seq
for surviving spouse/reg. domestic partner and minor children
What is the priority for selection of probate homestead set-aside property?
First, preference to community property or property held in common by decedent and person entitled to probate homestead set-aside.
What are the requirements for a property to be used for a probate homestead set-aside?
only that it be suitable for use as a future residence (no past use requirement)
How does a court decide on duration of a probate homestead set-aside?
Court's discretion
Must be for a limited time, not exceeding survivor's lifetime or child's minority.
Longer period when recipient has less assets; shorter when recipient has more assets.
What are creditor's rights with respect to a probate homestead property?
They have the right to satisfy their debts by satisfaction will be delayed.

The property is not liable for claims against the person for whom the property was set aside.
How is a probate homestead set-aside obtained?
Petition filed with the court by any interested person; 15 days notice (can't be done under IAEA powers)
Must the order setting aside a probate homestead be recorded?
Yes, 7263
May a court modify or terminate the probate homestead?
Yes, anytime before decree of final distribution.
What is a family allowance?
PC 6540
The court is mandated to order a family allowance to meet the needs of SS/RDP and minor or incapacitated adult children during period of administration
(discretion to adult children dependents and parents who are dependents)
When can a family allowance be applied for?
SS/RDP & minor or disabled adult children: ex parte before inventory

adult child dependents and parent dependents - after inventory is filed
How is the amount of the family allowance set?
By court's discretion, including evaluating other sources of income. Payments may be retroactive to date of death.

IAEA allows PR to make family allowance payments without court order.
What is the guideline for the duration of a family allowance?
If estate is solvent, must terminate before final distribution of estate.
Most local rules limit to 6-12 months from decedent's death.

If insolvent - must terminate no later than 1 year after letters are issued.
Can a court extend a probate administration to continue paying a family allowance?
PC 12203
Yes, if needed by recipient for necessaries of life + recipients needs outweigh those of beneficiaries
What is the priority of the family allowance?
PC 11421
After funeral and last illness expenses, family allowance comes next.

It ranks lower in order of priority among debts.
Does a PR acting under IAEA need to get court approval or give notice of proposed action to make family allowance payments?
No as to court approval.
Yes, as to notice of proposed action for first family allowance payment, as to continuing for more than 12 months from death and as to increasing the amount of family allowance.
What is a will annexed?
the person appointed as personal representative if no executor is named in the will or all named executors are unavailable.
When may a PR sell estate property?
When "necessary" to pay expenses, taxes, debts, devises, family allowance, etc. (PC 10000) OR
When a sale is to estate's advantage.
When is a sale of estate property improper?
when it is not necessary or advantageous to the estate
When can a sale be forced?
PC 10001
An interested person can petition for sale if PR refuses to sell the property and sale is necessary or advantageous or directed by the will to be sold.
What type of discretion regarding sale of estate property does the PR have?
what property to sell first?
whether to sell part or all?
whether to sell at auction or private sale.
What is the order of abatement?
PC 21402:
property not disposed of by the will
residuary gifts
general gifts to nonrelatives
general gifts to relatives
specific gifts to nonrelatives
specific gifts to relatives
(gifts abate equally by class)
What exceptions apply to the rules of abatement?
specific testamentary instructions
omitted spouse or child
taxproration
How does purchase money from the sale of encumbered real estate get applied?
10361
expense of administration
expenses of the sale
payment to satisfy the lien
remainder gets distributed per will or intestacy
Can the personal representative or his attorney purchase property from the estate?
No, PR 9880
UNLESS
1. will specifically allows for it
2. will grants PR option to purchase
3. all beneficiaries consent AND it is beneficial to estate
Does the PR have any limitations on contracting for an agent to sell the house?
1. Contract must be in writing
2. must get prior approval for exclusive listing (not to exceed 90 days)
What is a will annexed?
the person appointed as personal representative if no executor is named in the will or all named executors are unavailable.
When may a PR sell estate property?
When "necessary" to pay expenses, taxes, debts, devises, family allowance, etc. (PC 10000) OR
When a sale is to estate's advantage.
When is a sale of estate property improper?
when it is not necessary or advantageous to the estate
When can a sale be forced?
PC 10001
An interested person can petition for sale if PR refuses to sell the property and sale is necessary or advantageous or directed by the will to be sold.
What type of discretion regarding sale of estate property does the PR have?
what property to sell first?
whether to sell part or all?
whether to sell at auction or private sale.
What is the order of abatement?
PC 21402:
property not disposed of by the will
residuary gifts
general gifts to nonrelatives
general gifts to relatives
specific gifts to nonrelatives
specific gifts to relatives
(gifts abate equally by class)
What exceptions apply to the rules of abatement?
specific testamentary instructions
omitted spouse or child
taxproration
How does purchase money from the sale of encumbered real estate get applied?
10361
expense of administration
expenses of the sale
payment to satisfy the lien
remainder gets distributed per will or intestacy
Can the personal representative or his attorney purchase property from the estate?
No, PR 9880
UNLESS
1. will specifically allows for it
2. will grants PR option to purchase
3. all beneficiaries consent AND it is beneficial to estate
Does the PR have any limitations on contracting for an agent to sell the house?
1. Contract must be in writing
2. must get prior approval for exclusive listing (not to exceed 90 days) unless under IAEA
What is a will annexed?
the person appointed as personal representative if no executor is named in the will or all named executors are unavailable.
When may a PR sell estate property?
When "necessary" to pay expenses, taxes, debts, devises, family allowance, etc. (PC 10000) OR
When a sale is to estate's advantage.
When is a sale of estate property improper?
when it is not necessary or advantageous to the estate
When can a sale be forced?
PC 10001
An interested person can petition for sale if PR refuses to sell the property and sale is necessary or advantageous or directed by the will to be sold.
What type of discretion regarding sale of estate property does the PR have?
what property to sell first?
whether to sell part or all?
whether to sell at auction or private sale.
What is the order of abatement?
PC 21402:
property not disposed of by the will
residuary gifts
general gifts to nonrelatives
general gifts to relatives
specific gifts to nonrelatives
specific gifts to relatives
(gifts abate equally by class)
What exceptions apply to the rules of abatement?
specific testamentary instructions
omitted spouse or child
taxproration
How does purchase money from the sale of encumbered real estate get applied?
10361
expense of administration
expenses of the sale
payment to satisfy the lien
remainder gets distributed per will or intestacy
Can the personal representative or his attorney purchase property from the estate?
No, PR 9880
UNLESS
1. will specifically allows for it
2. will grants PR option to purchase
3. all beneficiaries consent AND it is beneficial to estate
Does the PR have any limitations on contracting for an agent to sell the house?
1. Contract must be in writing
2. must get prior approval for exclusive listing (not to exceed 90 days) unless under IAEA
Under the IAEA, what are exceptions to the general rule that court confirmation is required for sale to PR or attorney?
PR is estate's sole beneficiary;
time for creditor's claims has expired; no request for special notice is on file; all creditor's claims have been paid/withdrawn/consented.
For IAEA sales, what is the deadline for court confirmation after the sale?
30 days
PC 10308
What are some reasons a sale might not be approved?
appraisal not done within year of confirmation requested?
sale price less than 90% of appraised value
inadequate efforts to expose property to market.
When is publication of notice of sale required?
Always except for when specified in will, property worth less than $5K, or FULL IAEA authority.
PC 10300
Is acceptance of a bid for real estate by the PR considered final?
no, still needs confirmation by the court.
What are some standard contract terms for real property probate sale?
As-is
Subject to court confirmation
commission paid only from sales price and subject to court approval
Title is generally as is
When is the earliest and latest a probate sale of real estate can take place?
PC 10306
not before date stated in notice of sale
not later than one year after date in notice of sale
When should the real property be valued as of?
date of death
If a representative not acting under IAEA fails to submit sale for confirmation by court within 30 days, what happens?
Purchaser can submit.
Does sale of real estate require additional bond?
if bond has not been waived, court should increase bond to compensate for personal property increase after sale.
what are the notice requirements for the hearing to confirm the probate sale?
15 days notice before the hearing to purchasers, those requesting special notice, nonpetitioning representative
Will the court allow additional bids at the confirmation hearing?
yes, and higher bidders bidding in writing (minimum of 5-10% higher) MAY "win" the right to purchase.
what is the effect of a purchaser default after confirmation of sale?
court can order new sale to take place and authorize damages against purchaser.
How is the sale of personal property treated for a PR acting under IAEA?
PR can sell without court supervision only after giving notice of proposed action (although securities and perishable property don't require proposed action)
Under the IAEA, what is the effect of an interested person objecting to or filing restraining order against a notice of proposed action to sell personal property?
PC 10589
court approval for sale must be obtained.
What type of assets does PR not need court approval or to file notice of proposed action?
savings accounts, cds, etc.
What type of procedure does PR have to undertake to sell securities?
Ex parte petition the court for authority under simplified procedure
PC 10200
When is notice of sale NOT required for selling of securities?
When securities are listed on a major exchange, minimum selling price is set by the court.
Which sales DON'T require notice of sale and court confirmation?
Special sales under 10200
securities sold on national exchange;
perishable personal propety
what are the notice of sale requirements for a sale under court confirmation?
posting at county courthouse 15 days before sale AND/OR
publication 3 times during 10 day period
Is there a minimum sales price for personal property?
no, different than for real property
Do personal property sales need to be confirmed by the court?
yes, must be reported to and confirmed by court within 30 days from date of sale UNLESS acting under IAEA
are overbids allowed for personal property?
yes, if in writing and over 10/5% higher than original bid.
how is the personal property transferred (what written document)?
bill of sale
During administration, does the PR have a duty to prudently invest the assets until distribution?
No, other than requirement to put cash in interest-bearing accounts (PC 9652), the PR's job is mainly to preserve the estate until distribution.

If assets are substantial and administration is lengthy, perhaps more authority to invest.
What is the standard of care for PRs in making investment decisions?
ordinary care and diligence; avoid speculative investment (PC 9600).

Professional PRs are held to higher standard of cares
What is the difference between the duties of trustee and PR with respect to investments.
PR's duty is to preserve assets and close the estate.
Trustee's duty is to invest and diversify trust assets.
If someone is Trustee and PR, dual capacity doesn't broaden PR's duty to that of a trustee.
Can a PR hire an investment advisor?
Yes, upon petition for instructions under PC 9611 and 10500(b) showing benefit to the estate.
What investments are authorized under the IAEA without court approval or notice of proposed action?
1. deposit in interest bearing insured account
2. 1-year government bonds
3. money market mutual fund
4. exercise an option right belonging to the estate
5. purchase an annuity to satisfy devise of an annuity or other direction in will for periodic payment to devisee
Under the IAEA, what investments require a notice of proposed action by the PR?
1. invest in securities for surplus state monies
2. invest in any manner provided for in will (if PC 9732 is satisfied)
How should title to an account be held by the PR?
Jane Smith, as executor of the will of John Smith, deceased.

or

estate of John Smith, Jane Smith, executor

use TIN, not SS#
How should a PR not acting under the IAEA invest as authorized in the will?
Petition under PC 9732;
provide 15-day notice under PC 1220
As a general rule, may a PR compromise or settle claims against the estate without court approval?
Yes.
Greater flexibility under IAEA
Under IAEA, what actions may PR take with respect to compromise and settlement without court approval or notice of proposed action?
PC 10500, 10552
allow, pay, reject or contest any claim
compromise
release any claim belonging to estate if uncollectible
allow a claim filed after expiration of time for filing claims
Under the IAEA, which actions may PR take to settle/compromise a claim with notice of proposed action but without court approval?
3rd party claim to property if decedent died holding title to property OR
decedent's claim to property if title/possession held by another.
Under the IAEA, which actions may PR take without court authorization, instruction or approval/confirmation?
PR 9830
compromising or settling a claim for/against decedent
modifying terms of obligation owed to/by decedent
releasing uncollectible claim
extending lease under $5K/month for under 1 year or month-to-month lease
Under the IAEA, which compromise/settlement actions require court approval?
PR 9830
those involving real property
requiring transfer/encumbrance of estate property or creation of unsecured liability over $25K
action against attorney/PR or modification of debt by attorney/PR
wrongful death or personal injury
When should court authorization to settle a claim be requested?
After expiration of the creditor's claim period -- so that the court can determine whether there are sufficient assets to satisfy creditors. After expiration, no authorization required.
If before authorization, authorization is required.
What probate code governs court authorization of settlement/compromise?
PC 9836-9839
What should a PR do with a property that might be "underwater?"
until all interested parties agree that it is underwater, PR should probably continue making payments to avoid personal liability for foreclosure damages. PR should consider whether other assets may be attacked by creditor for deficiency on mortgage.
What steps should a PR take with an underwater property to get court review?
Petition to compromise under PC 9830 -- after a few missed payments, lender agreement to accept conveyance as property as full satisfaction of note in lieu of foreclosure

Petition for instructions under 9611 to withhold payments and allow foreclosure
How can a creditor commence an action on a note against the decedent's estate?
File a creditor claim (and have it rejected) - PC 9351.
Exception for secured property - doesn't require a creditor's claim, but rights to all other property will be waived.
Can a PR accept a deed in lieu of foreclosure?
Yes, with court authorization upon showing by clear & convincing evidence that it is to estate's advantage.

no court authorization or notice of action required under IAEA.
As a general rule, which is the preferred way to raise cash for estate obligations, borrowing or selilng?
Selling.

Borrowing only appropriate with other property is specifically devised, ability to pay the loan, consent of beneficiaries and interested people in borrowed properties, or showing that is to advantage of estate (PC 9800)
As a general rule, does specifically devised property transfer subject to indebtedness against it?
Yes, unless testator provides otherwise (PC 21137)
What is the treatment of informal advances by the PR to the estate?
They generally get treated as general debts and raise the specter of conflict of interests.
What is the treatment of loans to the estate by devisees or other 3rd parties?
generally disfavored because lender has little recourse against estate.
Better practice would be to petition court for order requiring PR to make the expenditure.
What are the differences between the power to borrow under IAEA and not under IAEA?
IAEA - authority to borrow without court supervision, including to encumber real property (but needs to give proposed action to encumber)

non-IAEA
PR needs to get court approval and show that loan is to advantage of estate
What are authorized purposes for loans for the estate?
pay debts, expenses and charges
pay, reduce existing lien or mortgage
improve, use or preserve estate property
What probate code section governs the exercise of options?
PC 9980
What is the option-related exception to the general rule that IAEA representative may not purchase estate property?
PC 10516
PR may exercise testamentary option after giving notice of proposed action.
What protections are required for creditors before the court will authorize transfer of property to an optionee?
PC 9982 - creditor rights must not be impaired or court shall require posting of a bond.
How are options handled for PRs with IAEA powers?
Full power - no court approval required for granting options (except to PR himself)
Limited power - court approval required.
How are options handled outside the IAEA?
PR may obtain court approval for granting options.
What is the minimum purchase price for which the option to purchase may be exercised?
90% of appraised value.
When is court approval required to allow the PR to grant leases?
Under IAEA, not required (but notice of approval for >1 year leases is required.

Outside IAEA, required unless lease is month-to-month OR under one year and under $5k/month.
Does the court have to consider alternate offers to lease for more favorable terms?
yes
What must an attorney do if a potential conflict (for which he has waivers) becomes an actual conflict?
obtain additional waivers.
Does a potential conflict of interest automatically disqualify a proposed executor/PR?
No, unless clear showing of harm to estate and actual conflict of interest.
How should the PR determine what to do with decedent's business?
examine will
letters of instruction
corporate documents (e.g. buy sell)
If a decedent's business interest is CP, can it be handled under a spousal property petition?
Yes, PC 13650.
Does a PR need court authority to run a sole proprietorship?
no, not for 6 months from issuance of letters.
Under IAEA, what authority does PR have to operate the business?
Can operate for up to 6 months from issuance of letters; after 6 months must file notice of proposed action to continue.
under IAEA, which actions still require court approval?
PR 9800 et seq
litigation
leases
encumbering estate property
compromise of claims
outside of IAEA, how may a PR operate decedent's business
by requesting authority to continue the business (9760)
or to act as a partner (9762)
What is the effect on PR of operating business without authority?
personally liable for losses.
but can get retroactive ratification from court.
If a partnership's documents don't set a price for split upon death, how is it set?
the buyout price is the greater of half the liquidation value or value of the partnership as a going concern without the deceased partner.
What must a professional corporation do in the event of the death of one of its shareholders?
repurchase within 6 months
What probate code section handles a deceased attorney's practice?
17200(b)(22)
How is a practice administrator selected for a deceased attorney's practice?
PC 9764
nominated by decedent
or nominated by PR or interested person who is member of Bar
What happens if no one is available to take over a deceased lawyer's files?
The State Bar may be appointed to handle
What is the standard of care for the PR in operating decedent's business?
ordinary care and diligence (higher for professional fiduciaries)
what happens to the attorney-client privilege after client's death?
it transfers to the personal representative and terminates when no PR to claim it
how is the attorney for the personal representative compensated?
the PR shares the statutory fee with the attorney
What code section governs the allocation of principal and income?
PC 16320
What documents evidence the PR's authority to act?
Letters testamentary
How should the PR allocate payments for statutory compensation, fees of attorney and PR, and administration expenses?
Between principal and income according to PR discretion
How should PR allocate expenses for debts, taxes, funeral expenses, family allowances, etc.?
To principal.
When may an account be filed?
Normally filed at end of administration, but if complex, ok to file earlier.
When must an account be filed?
PC 10950
on court's order
when interested person demands when estate is ready to be closed
when change of PR
or PR deceased
When must PR file a report of status or report for final distribution?
PC 12200
1 year after issuance of letters (no estate tax return required)
18 months after issuance of letters (when estate tax return required)
When is an account not required to be filed by PR?
PC 10954
when beneficiary has filed a waiver of account or satisfaction
OR
adequate provisions have been made for full satisfaction of each beneficiary
What probate code section lists the requirements for contents of an account?
PC 10900
When are tax clearance certificates required?
value of estate over $1M and $250K to be distributed to non-residents.
What probate code section dictates the format of an account?
PC 1060
What is "carry value?"
The value of the property at the time it came into the estate.
All property received (other than money) should be allocated to _____?
principal
What are some typical disbursements allocated to principal?
principal portion of mortgage
estate taxes
debts
family allowance
expenses of administration
major repairs to estate property
real property taxes
What are some typical disbursements allocated to income?
interest portion of mortgages
routine expenses of maintaining estate property
If a will is revoked by a later writing and that writing is then destroyed, is the original will effective?
No, PC 6123
A former spouse in a will is treated as having been pre-deceased. How is a legally separated spouse treated?
Normally - however they are referenced in the will.
What is abatement?
a reduction in testamentary gifts due to insufficient assets to cover gifts.