CP Probate & Estate Administration 2 — Questions and Answers
Question 1: What is the difference between testate and intestate succession?
- Testate goes through probate, intestate does not
- Testate occurs with a valid will, intestate occurs without one (Correct answer)
- Testate for real property, intestate for personal property
- No legal difference
Correct answer: Testate occurs with a valid will, intestate occurs without one
Testate succession follows the will's directions; intestate succession distributes property according to state law.
When a person dies testate, property is distributed per the will, subject to mandatory provisions like elective share statutes. When intestate, state intestacy statutes prioritize surviving spouse, then children, parents, siblings, and more distant relatives. The Uniform Probate Code provides a model framework.
Question 2: What is the role of a personal representative (executor/administrator) in probate?
- Represent the deceased in lawsuits only
- Manage the estate including collecting assets, paying debts and taxes, and distributing property (Correct answer)
- Decide who inherits regardless of the will
- Serve as the probate judge
Correct answer: Manage the estate including collecting assets, paying debts and taxes, and distributing property
The personal representative manages all aspects of estate administration with fiduciary duties to beneficiaries and creditors.
Responsibilities include: locating and filing the will, notifying heirs and creditors, inventorying and appraising assets, managing property during administration, paying debts, filing tax returns, distributing assets, and filing final accounting. An executor is named in the will; an administrator is court-appointed.
Question 3: What is a living trust and how does it differ from a testamentary trust?
- Living for expenses, testamentary for death benefits
- A living trust is created during the grantor's lifetime and can avoid probate; a testamentary trust is created by will and takes effect at death (Correct answer)
- Living cannot be changed, testamentary can be modified
- No practical difference
Correct answer: A living trust is created during the grantor's lifetime and can avoid probate; a testamentary trust is created by will and takes effect at death
A living trust is established during the grantor's lifetime and avoids probate; a testamentary trust is created within a will.
A living trust can be revocable or irrevocable. Advantages include avoiding probate, managing incapacity, maintaining privacy, and potentially reducing estate taxes. A testamentary trust must go through probate. Both can provide ongoing asset management for beneficiaries.
Question 4: What is a power of attorney and how many types are there?
- A license to practice law; one type
- A legal document authorizing someone to act on another's behalf; types include general, limited, durable, and springing (Correct answer)
- Court-appointed estate authority; two types
- A judge's case authority; one per court
Correct answer: A legal document authorizing someone to act on another's behalf; types include general, limited, durable, and springing
A power of attorney authorizes an agent to act on the principal's behalf, with several types serving different purposes.
Types include: General POA (broad authority), Limited POA (specific tasks or periods), Durable POA (survives incapacity), Springing POA (effective upon incapacity), and Healthcare POA (medical decisions). All POAs terminate upon the principal's death.
Question 5: What is the elective share in probate law?
- The share the executor chooses to distribute
- A statutory right allowing a surviving spouse to claim a minimum percentage of the estate regardless of the will (Correct answer)
- The portion going to charity
- The beneficiary's choice between will and intestacy
Correct answer: A statutory right allowing a surviving spouse to claim a minimum percentage of the estate regardless of the will
The elective share protects surviving spouses by allowing them to claim a statutory minimum, even if the will leaves them less.
The elective share varies by state, commonly one-third to one-half. Under the UPC, it ranges from 3% to 50% based on marriage length. It may apply to the augmented estate, including certain lifetime transfers to prevent circumvention.
Question 6: What are the formal requirements for a valid will in most states?
- Typed, notarized, and filed during lifetime
- Legal age and sound mind, in writing, signed by the testator, and witnessed by at least two competent witnesses (Correct answer)
- Prepared by an attorney and registered
- Only needs testator's signature, no witnesses
Correct answer: Legal age and sound mind, in writing, signed by the testator, and witnessed by at least two competent witnesses
Most states require legal age, testamentary capacity, writing, testator's signature, and at least two disinterested witnesses.
Requirements include: testamentary capacity (understanding property, beneficiaries, and the act of making a will), writing, signature, and typically two competent disinterested witnesses. Some states recognize holographic wills and self-proving affidavits. Nuncupative wills are recognized in very limited circumstances.
CP Probate & Estate Administration 2
What is the difference between testate and intestate succession?