Estate Planning and Probate Flashcards

John passes away without leaving a valid will. His property will be distributed according to state law. What is the legal term for dying without a will?

Answer: Intestate

"Intestate" is the legal term for the condition of an estate of a person who dies without a valid will. "Testate" means dying with a valid will. "Escheat" is the process where property transfers to the state if no heirs can be found. "Ademption" occurs when a specific gift in a will is no longer in the estate at the time of death.

In her will, Mary names her brother, David, to manage her estate, pay her final debts, and distribute her assets according to the will's instructions. What is David's official legal title?

Answer: Executor

An 'Executor' is the person or entity named in a will to carry out its provisions and manage the decedent's estate. An 'Administrator' is appointed by the court when there is no will. A 'Trustee' manages a trust, and a 'Beneficiary' is a person who receives assets from the estate.

A client wishes to create a legal document that designates an agent to make medical decisions for them only when they are unable to make those decisions themselves. Which of the following documents would a paralegal assist an attorney in drafting to accomplish this?

Answer: Durable Power of Attorney for Health Care

A Durable Power of Attorney for Health Care (also known as a health care proxy or medical power of attorney) is specifically designed to grant an agent authority to make medical decisions upon the principal's incapacitation. A will only takes effect upon death, a trust manages assets, and a general power of attorney typically covers financial matters and may not be effective upon incapacitation unless it is 'durable'.

A primary goal for a client in their estate plan is to ensure their major assets, such as their home and investment accounts, pass directly to their children without undergoing the time-consuming and public process of probate. Which estate planning tool is most commonly used to achieve this?

Answer: A revocable living trust

Assets properly transferred into a revocable living trust during the grantor's lifetime are not considered part of the probate estate upon death. They are instead distributed by the successor trustee according to the trust's terms, thus avoiding probate. A will, by its nature, must be probated. A power of attorney terminates at death.

In many jurisdictions that recognize them, what is the most critical requirement for a holographic will to be deemed valid?

Answer: The material provisions must be in the testator's handwriting.

The defining characteristic of a holographic will is that it is written by the testator's own hand. While specific requirements vary by state, the fact that the substantive parts and signature are in the testator's handwriting is the core element that allows it to be valid, often without the witness and notary requirements of a formal will.

During the administration of a decedent's estate, the executor must pay all valid claims and debts before distributing assets to the beneficiaries. According to the general order of priority, which of the following would typically be paid first?

Answer: Funeral expenses and costs of administration

State probate codes establish a priority of claims to be paid from an estate. Generally, the costs associated with administering the estate (attorney fees, court costs) and reasonable funeral expenses are given the highest priority and must be paid before other debts and before any distributions are made to beneficiaries.