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23 Cards in this Set
- Front
- Back
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When does an estate have independent administration?
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1. Where one is named in the will, however informal (e.g. “none of that court stuff”)
2. All the Distributees Agree (subject to a judge veto) |
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What remedies (i.e. when can an executor be removed by the court) are available against wrong doing by an independent executor?
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1. Fails to return inventory with 90 days.
2. Misapplied or embezzles estate property; 3. Fails to make a required accounting; 4. Fails to give notice to charitable beneficiaries within 30 days after probate; 5. Guilty of gross misconduct or mismanagement 6. Becomes incapacitated or incarcerated. |
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When can an interested party demand an accounting?
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15 months from probate and thereafter, every 12 months.
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What is the priority of those who will be appointed personal representative?
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1. Executor Named in Will
2. Surviving Spouse 3. Primary Beneficiary in Will 4. Other Beneficiary in Will 5. Next of Kin, in order of nearest kinship Note only 2 & 5 would apply intestate. |
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What is the test applied to actions by the independent executor?
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Prudence, therefore if the independent executor performs an action that was done by the testator when alive but which is not prudent he is still liable (e.g. not carrying insurance on boat).
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Is administration necessary where all community property is taken by the surviving spouse by intestacy (i.e. because of no kids, or all the kids are with the surviving spouse)?
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No, and if the surviving spouse needs to clear title to anything a statutory heirship proceeding can be used.
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What procedures are available for simplified administration of an estate (i.e. no formal proceedings)?
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1. Informal Family Settlements
2. Order of No Necessity of Administration 3. Probate of Will as Muniment of Title (w/ Will) 4. Statutory Heirship Proceeding (w/o will) 5. Non-statutory Heirship Proceeding |
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What is necessary before a court can probate a will as Muniment of title?
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No Unpaid Debts by the estate other than mortgage on the homestead.
So pay all the creditors then file. |
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What is the effect of a Statutory Heirship Proceeding?
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It is essentially, a Muniment of title where there is no will. Thus, it declares who the intestate beneficiaries are and their respective shares.
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What is small estate administration?
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Where an estate is less than $50,000 (excluding the value of the homestead) an affidavit is filed by the court as to who the heirs and their distribution.
This procedure can be used to clear title to a homestead only if the person owned no other real property. |
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What are the steps in “dependent” or court-supervised administration?
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1. Petition
2. Notice to interested parties 3. Hearing 4. Subsequent Judicial Confirmation This happens at every stage of the process. |
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How long after being appointed must an independent executor give notice to creditors?
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One month after being appointed must publish notice in newspaper
Two months personal notice must be given to secured creditors |
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What is permissive personal notice?
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A independent administrator may give personal notice to an unsecured creditor stating that a claim must be brought within 4 months or its it barred.
This can be used to speed up the process. |
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How does a secured creditor get matured secured claim status (i.e. paid out of general assets)?
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File a claim within 6 months of personal reps appointment or 4 month after personal notice.
Otherwise, they get preferred debt and lien status and can only look to the value of the security for repayment. |
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What is the order in which claims against the estate are paid?
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1. Preferred Debt & Lien (as to value of the security, no deficiency judgment)
2. Funeral and Last Illness Expenses (up to $15,000) 3. Family Allowance 4. Expenses of Administration 5. Federal Taxes 6. Matured Secured Creditors 7. Child Support Arrearages 8. State Taxes 9. All other expenses including funeral over $15,000. |
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What are the procedural steps for the sale of real property in a court-supervised administration?
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1. File Application for Sale
2. Notice to all Interested Persons 3. Hearing Held – Specifying Terms of Sale 4. Property is Sold 5. Notice to Interested Parties and Confirmation of Sale Hearing is Held 6. Personal Rep Gives Deed to Purchaser |
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What size/type of property can qualify for a homestead?
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10 acres if urban, must be used as a residence or business.
200 acres (doesn’t need to be contiguous) Also, both spouses must have joined in conveyance or mortgage on the property even if not community |
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What are the consequences of Qualifying as a Homestead?
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Free from creditors claims except for:
1. Purchase money mortgage lien. 2. Taxes 3. Federal Tax Liens 4. Mechanic’s Liens 5. Equity Loan Up to 80% of value of home |
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What is a probate homestead?
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Right to occupy the homestead (even if separate property) rent-free for life, or for so long as the homestead is occupied by the surviving spouse or minor children (not adult children)
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What is the exempt personal property set-aside?
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An exemption from creditors claims of certain assets (listed in statute) not to exceed $60,000. (e.g. household items, tools, etc.)
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What is the homestead allowance?
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Available to those who don’t own property (i.e. renters) gives $15,000.
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What is the allowance in lieu of exempt personal property?
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Available up to $5,000 to the extent that items are not available on the exempt personal property list.
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What is the family allowance?
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An amount needed for support for a period of one year to provide for surviving spouse and minor children during a period sufficient to wrap up the estate.
You look to the amount of separate property owned by surviving spouse but not CP in making a determination whether to grant. |
